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Utilities, others, ask Supreme Court to review EPA's authority on greenhouse gases

From the April 1, 2013 issue of Public Power Daily

Originally published April 1, 2013

By Jeannine Anderson
In three different court challenges, the state of Virginia, the Pacific Legal Foundation and a group of utilities have asked the Supreme Court to overturn a decision made by a federal appeals court last year that upholds greenhouse gas regulations issued by the Environmental Protection Agency.

The state of Virginia and the Pacific Legal Foundation filed separate petitions asking the Supreme Court to review a ruling made last June by the U.S. Court of Appeals for the District of Columbia Circuit. In that ruling, a three-judge panel rejected petitions for review of several EPA actions on greenhouse gases, including its 2009 "endangerment" finding and the "tailoring rule," which limits regulation to very large stationary sources such as power plants. The three-judge panel also rebuffed challenges to EPA’s "timing" rule, which establishes Jan. 2, 2011 as the date on which major stationary sources became subject to permitting rules, and the agency's tailpipe rule, which addresses vehicle emissions.

Last December, the D.C. Circuit denied requests to rehear the cases.

"It is the ubiquitous nature of carbon dioxide that makes this case one of extraordinary national importance," the Pacific Legal Foundation said in its March 21 petition asking for a writ of certiorari from the Supreme Court. Noting that "carbon dioxide is everywhere," the conservative watchdog group said the EPA's endangerment finding empowers the agency "to regulate the nation's physical, economic and social infrastructure." 

The foundation argues that the EPA acted illegally by not asking its Scientific Advisory Board to review its endangerment finding before finalizing that document in 2009. The endangerment finding says carbon dioxide and other greenhouse gases endanger the public and should be regulated under the Clean Air Act.

In its June 2012 ruling, the D.C. Circuit ruled that the petitioners -- various industry groups and states -- lacked standing to contest the timing and tailoring rules. The tailoring rule limits the reach of EPA’s Prevention of Significant Deterioration program and Title V Operating Permit program to new stationary sources that emit 100,000 tons per year of carbon dioxide-equivalent, and existing facilities with at least 100,000 tons per year that are making changes that would increase emissions by at least 75,000 tons. The Clean Air Act calls for those rules to apply to new sources that emit 250 tons per year of a pollutant and modified sources that emit 100 tons per year.

"Simply put, petitioners have failed to establish that the timing and tailoring rules caused them ‘injury in fact,’ much less injury that could be redressed" by vacating the rules, the court held. "Indeed, the timing and tailoring rules actually mitigate petitioners’ purported injuries."

The Utility Air Regulatory Group, a coalition of utilities (APPA is a member of UARG), filed a petition on March 20 asking the Supreme Court to review the D.C. Circuit's June 2012 decision. Among other things, UARG asked the high court to determine whether its ruling in a 2007 case, Massachusetts v. EPA, requires the EPA to include greenhouse gases in its Clean Air Act Title V and Prevention of Significant Deterioration programs. The 2007 decision by the Supreme Court found that carbon dioxide is a pollutant subject to regulation under the Clean Air Act.


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