THE EPA GREENHOUSE GAS (GHG) RULES MAY GO UP TO THE SUPREME COURT, BUT GHG EMISSIONS FROM UTILITIES ARE GOING DOWN

Late last year, in Coalition for Responsible Regulation v. EPA, the United States Court of Appeals for the District of Columbia (by a 6 to 2 vote) rejected petitions seeking to rehear en banc a three judge panel’s unanimous per curiam decision to uphold the Environmental Protection Agency’s (EPA) Clean Air Act (CAA) greenhouse gas “tailoring” rule. This 2010 rule required reductions in GHG emissions from many factories and other covered stationary emission sources.  The outcome was not especially surprising, given that the three judges that originally reviewed the rule characterized the legal issues as “straightforward, requiring no more than the application of clear statutes and binding Supreme Court precedent.”

On the other hand, one of the two dissenting  judges in the en banc decision interpreted the 2007 Supreme Court ruling in Massachusetts v. EPA – the principal Supreme Court precedent at issue – as applying only to GHG emissions from vehicles (not to the prevention of significant deterioration program that applies to factories and other stationary emission sources).  He argued that there are two “plausible” readings of the statute, but the interpretation chosen by the original three Court of Appeals judges reviewing the regulation “would cause absurd results” and it would be “strange interpretation” to “suggest that the agency can choose the absurd reading and then start rewriting otherwise perfectly clear portions of the statute to try to make it all work out.”

The decision is likely to be appealed and the Supreme Court will be faced with two clearly distinct legal theories concerning how to interpret the Clean Air Act.  At this point, whether the Supreme Court will view the EPA rule as a straightforward application of a clear statute or an absurd interpretation that essentially re-writes the statute is hard to determine.  The first hint will be whether the Supreme Court accepts the appeal.

Regardless of the result of this appeal, however, in December 2012, the Department of Energy predicted that when full-year numbers are in, U.S. energy-related carbon dioxide emissions in 2012 would fall below 1990 levels (due to the slowdown in the economy, new energy and fuel efficiency rules, and sharp increases in the use of natural gas driven by plentiful supplies and lower costs).

William J. Walsh, Esq.

 

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