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The Supreme Court and GHGs, Round 2

A thorny but ultimately not very important question about EPA’s stationary source GHG regulations is heading for the Supreme Court.  On October 15, the Court agreed to decide whether EPA’s motor vehicle CO2 emissions standards “triggered” the Clean Air Act’s PSD permitting requirements for stationary sources.

The gist of the issue is whether the PSD provisions, which are geared toward the six NAAQS pollutants (ozone, particulate matter, sulfur dioxide, etc.) also apply to GHGs via a phrase in the relevant PSD provision that requires controls on “any air pollutant”.   EPA (as it has for decades) said that “any” means “any” and not just the NAAQS pollutants, the D.C. Circuit agreed, and now the Supreme Court will have the last word.

Little rides on this in terms of GHG emissions regulation, for two reasons.  First, whatever the Court decides, PSD permits have mandated only de minimis emissions reductions.  EPA’s real stationary source clout stems from its authority under Section 111, and that authority was triggered by EPA’s finding that GHGs are “reasonably anticipated to endanger human health and welfare”, a finding that was upheld by the D.C. Circuit and which the Supreme Court declined to review.  EPA has already proposed Section 111 standards for new power plants, to be followed by standards for existing plants next year.  After that, EPA will move on to the other categories of major GHG emitters, such as refineries, steel mills, etc.  To date, the largest impacts from the PSD GHG program have been a far more expensive and complex permitting process, as EPA has been requiring applicants to investigate whether CCS would be an appropriate control technology.  The answer is always “no”, but as a result EPA has been able to build its library of technical data on CCS for future use.

Second, it is not even clear precisely what the Supreme Court will review; its order is ambiguous and can be interpreted in two ways.  In the expansive view, it will decide whether the PSD requirements apply to GHGs.  In the restricted view, it will decide only whether the PSD requirements are “triggered” for sources that now come under the PSD regime solely because of their GHG emissions, as opposed to sources that are already regulated under the PSD program for other emissions and will now also be regulated for GHGs.  If the Court is reviewing the latter issue, its ruling will have virtually no impact on emissions: sources that are already in the PSD program emit 65% of stationary source GHGs, compared to only 2% for sources that have been added solely on the basis of their GHG emissions.

We will keep you posted.