Carbon Copy: Understanding What Is, and Is Not, At Stake in the Latest Supreme Court Climate Case

Far from the Republican narrative that President Obama is “bypassing Congress,” the president is carrying out his duty to faithfully execute the laws already on the books, that Congress already passed – in this case, the Clean Air Act.

The case on to be heard on Monday, Utility Air Regulatory Group v. EPA, grows out of those first-term actions on carbon pollution.  After being smacked down in the Court of Appeals in Washington, industry trade groups, conservative states, and others asked the Supreme Court to reconsider its two earlier decisions, overturn EPA’s endangerment finding, block the clean car standards, and effectively also block EPA’s forthcoming power plant standards. Last October, the Court rejected each of these petitions. 

With this third strike, EPA’s authority to set enforceable carbon pollution standards for cars, power plants, and other big industries is now 100 percent settled.

So what did the Supreme Court agree to review?  The Court asked for briefs on just one issue: whether EPA’s vehicle emission standards triggered requirements for carbon-emitting industrial sources to obtain certain kinds of permits under other parts of the Clean Air Act.

There are two relevant permitting requirements under the Act.

The first is called “new source review,” and it is found in the Prevention of Significant Deterioration (PSD) provisions of the Act.  Each new and modified major industrial source must get a construction permit before starting to build, showing that it will use the “best available control technology” (BACT) for “each pollutant subject to regulation” under the Act.

The second is called the “operating permit program,” and it is found in Title V of the Act.  It requires each existing major industrial source to have an operating permit collecting in one place all of the emission limits and monitoring obligations that apply to the source.

What is the relationship between permits and standards?

Standards are fully enforceable on their own even if there are no permits. Plant operators have to report their emissions and show that they meet their standards, and violations bring fines and penalties.

Permits are important nevertheless.  Construction permits are important because they establish BACT pollution limits for new or expanded sources when there is no standard.  (EPA is only now developing carbon pollution standards for power plants, and standards for other industries will take longer.)  And later, when a standard is a bit old and out of date, the plant-specific determination of BACT makes sure that big new plants will be built with up-to-date modern pollution controls.

Operating permits are important because they collect all applicable standards and requirements in one document, simplifying compliance and enforcement. But those standards are legally binding and enforceable even if there is no operating permit.

These permitting requirements apply to “major” sources – those that emit amounts of pollution above certain threshold amounts set forth in the law.  The idea was that big polluters should be scrutinized more carefully than small ones, and that they can afford it.

The question the Supreme Court will consider is whether an industrial source can become “major” – and subject to these permitting and BACT requirements – because of its carbon pollution.

According to EPA and the Court of Appeals in Washington, the Clean Air Act makes no distinction between carbon pollution and other kinds of pollution. The words of the statute say that the permitting and BACT requirements apply to “any air pollutant” and “each pollutant subject to regulation.”  So when EPA set the carbon pollution standards for vehicles, carbon dioxide (CO2) became a regulated pollutant just like sulfur dioxide, nitrogen oxides, or any other substance the Clean Air Act has controlled for decades. From then on, that meant major sources of CO2 had to obtain construction and operating permits.

The industry and state petitioners claim otherwise. They claim that CO2 is totally different from the pollutants Congress meant the permit requirements to cover, and that CO2 never triggers those requirements. In other words, a plant’s CO2 emissions, no matter how large, can never make that plant a “major” source and can never require it to get either construction or operating permits.

The industry groups and their conservative allies have thrown up a hodgepodge of arguments why the statutory 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 government and its allies (including NRDC) have filed briefs showing 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 CO2 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 CO2 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 BACT pollution controls for giant polluters like these.

So EPA decided to phase in the permitting requirements, starting with the biggest emitters – ones that release more than 100,000 tons of carbon pollution each year.  Smaller sources don’t have to do anything, even if they emit more than 100 or 250 tons per year of CO2.

The industry groups and their allies profess to worry that EPA may someday require PSD permits for thousands of small CO2-emitting sources that have never needed permits before.  This, they say, would be “absurd.”  So they’re asking the Court to create a total permitting exemption for all sources of climate-changing pollutants – even for giant CO2 sources like power plants and oil refineries – despite the plain language of the law.

Hopefully, on Monday the Supreme Court will see through these 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. That’s an average of two facilities per state per year.  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.

We’re confident that EPA and the Court of Appeals got it right – that the permitting requirements do apply to large industrial carbon pollution sources. 

But the most important thing to remember is that the Supreme Court has already reaffirmed EPA’s authority and responsibility to act on the overwhelming science showing that carbon pollution is driving dangerous climate change.

President Obama deserves enormous credit for setting landmark clean car standards, for tackling the dangerous carbon pollution from our power plants, and for taking the other climate protection actions under the Climate Action Plan.  These critical steps are not at issue in Monday’s argument, and they are essential to protect our children and grandchildren from a world turned upside down by climate change.