On Tuesday, NRDC and other environmental groups filed their brief in the latest Supreme Court case about climate change. This case, called Utility Air Regulatory Group v. EPA, will decide whether the Clean Air Act's permitting requirements apply to major industrial sources of the carbon pollution that drives dangerous climate change. EPA and a coalition of states led by New York also filed their briefs, and all three will be posted here soon. Here’s a refresher on what is, and is not, at stake when the Court hears oral argument on February 24th.
First, what’s not at issue in this case. As I explained here, the Supreme Court last October rejected pleas from industry trade associations, conservative states, and right-wing groups to block EPA from setting standards to curb carbon pollution. In two seminal decisions, Massachusetts v. EPA in 2007 and American Electric Power v. Connecticut in 2011, the Court had already held that it is EPA’s job under the Clean Air Act to set emission standards for dangerous climate-changing greenhouse gases. In this case, after being smacked down in the Court of Appeals in Washington, the industry groups and their allies asked the Supreme Court to reconsider its earlier cases, overturn EPA’s science-based “endangerment finding,” block the agency’s historic clean car standards, and effectively also block EPA’s forthcoming power plant standards. The Court said, no, no, no, and no.
So it is now 100 percent settled that EPA has the authority to set enforceable carbon pollution standards for cars, power plants, and other big industries.
While EPA’s standard-setting authority is now beyond question, the Court did agree to hear one other issue: Whether setting the clean car standards triggered the Clean Air Act’s permitting requirements for new industrial facilities that emit large amounts of climate-changing pollutants.
Those permitting requirements – called “prevention of significant deterioration” (PSD) permits – are there to assure that “major emitting facilities” are built with state-of-the-art pollution controls. They apply to large emitters of “any air pollutant” and require “best available control technology” (BACT) “for each pollutant subject to regulation.”
The industry groups and their conservative allies have thrown up a hodgepodge of arguments why those words – “any air pollutant” and “each pollutant subject to regulation” – should be read to mean something other than what they say. But the challengers start well behind the 8-ball. The Supreme Court has already ruled, in Massachusetts and American Electric Power, that carbon dioxide and the other climate-changing pollutants are “air pollutants” under the Clean Air Act. The briefs filed Tuesday show that “any” and “each” pollutant include climate-changing pollutants just like all others.
The only thing different about climate-changing pollutants is that fuel-burning sources emit a lot more carbon dioxide than other pollutants. That doesn’t raise any questions about how you handle a new power plant, an oil refinery, or a natural gas processing plant. Their carbon dioxide emissions are way, way above the statutory thresholds –100 or 250 tons per year, depending on the industry – that define a “major emitting facility.” There’s no reason not to require permits and best pollution controls for giant polluters like these.
The industry groups and their allies profess to worry that PSD permits may someday be required for thousands of smaller CO2-emitting sources that have never needed permits before. “Absurd!” they cry, and then ask the Court to create a total permitting exemption for climate-changing pollutants – even for giant sources – despite the plain language of the law. Talk about throwing out the baby with the bathwater.
The briefs filed Tuesday should cause the Supreme Court to see through the efforts to hide power plants and oil refineries behind homes and grocery stores. The briefs show that EPA is actually implementing the permit requirements in a reasonable and responsible way – focusing on the biggest climate polluters that produce the vast majority of all the carbon pollution, while working on solutions that will avoid burdening small sources or clogging the permit system.
In the first two years that these requirements were in effect, fewer than 200 facilities nationwide, all of them big industrial projects, needed PSD permits because of their climate-changing pollution. Not a single home, hospital, church, or grocery store has had to do a thing. So despite all the cries of alarm, the Clean Air Act’s permitting requirements are working just fine.