Academic journal article Harvard Law Review

Clean Air Act - Stationary Source Greenhouse Gas Regulation

Academic journal article Harvard Law Review

Clean Air Act - Stationary Source Greenhouse Gas Regulation

Article excerpt

In the face of congressional gridlock preventing the passage of comprehensive climate change legislation, the Environmental Protection Agency (EPA) has pursued climate change regulation under existing authority provided by the Clean Air Act (1) (CAA). But the Act's regulatory requirements apply imperfectly to the chemical, physical, and political nature of greenhouse gases.

Last Term, in Utility Air Regulatory Group v. EPA (2) (UARG), the Supreme Court held that under the CAA, stationary sources' emissions of greenhouse gases (GHGs) alone could not trigger either the Act's Prevention of Significant Deterioration (PSD) program or Title V permitting requirements. (3) However, the Court held that the CAA does allow the application of the PSD program's "best available control technology" (BACT) requirement to the emission of GHGs from those sources that emit sufficient quantities of other pollutants that they would be subject to the PSD program "anyway." (4) The practical effect of the Court's decision is limited: the EPA maintains regulatory authority over all but three percent of the stationary sources it had found regulable. (5) But the Court's decision is significant for its restrictions on political judgment in agency decisionmaking.

The UARG Court's holding that emissions of GHGs cannot trigger the PSD program both relies on and reinforces a flawed conclusion at the heart of Massachusetts v. EPA (6) : that being an "airborne compound[] of whatever stripe" (7) is sufficient to qualify a substance as an "air pollutant." (8) This unnecessarily broad language in Massachusetts, which failed to recognize that the EPA must make a fundamentally political decision when it determines whether an airborne compound is a "pollutant," created the central problem for the EPA in UARG and may continue to affect the EPA's regulation of GHGs.

The facts giving rise to UARG began in 2007, when the Massachusetts Court held that the EPA had the authority under Title II of the CAA to regulate GHGs from new motor vehicles if the agency formed a "judgment" that emissions of GHGs contribute to air pollution that may endanger public health or welfare. (9) The Court rejected the EPA's argument that GHGs were not "pollutants" for purposes of the CAA, because the CAA's act-wide definition of "air pollutant" "embraces all airborne compounds of whatever stripe." (10) Further, the Court held that the EPA was required to make a "reasoned judgment as to whether GHGs contribute to global warming." (11)

Two years later, the EPA made that "reasoned judgment" in an Endangerment Finding, determining that GHGs endanger public health and welfare by contributing to global climate change. (12) That Endangerment Finding then triggered the EPA's obligation to regulate emissions of GHGs from new motor vehicles. (13) In May 2010, in the "Tailpipe Rule," the EPA promulgated GHG emission standards for new motor vehicles. (14) The EPA previously had explained that, under its understanding of the CAA, (15) regulation of GHG emissions from new motor vehicles would trigger broader regulation of GHG emissions: GHGs would become pollutants "subject to regulation" and, as a result, the PSD program and Title V permitting requirements would apply to many other sources emitting GHGs. (16)

The PSD program imposes emission limits on "major emitting facilities" located in areas in "attainment" for one or more of the National Ambient Air Quality Standards (NAAQS). (17) A "major emitting facility" is one that emits (or has the potential to emit) statutorily defined quantities of "any air pollutant" (18)--the critical language at issue in UARG. The program is intended to "ensure that the air quality in attainment areas or areas that are already 'clean' will not degrade." (19) Thus, in those clean areas, a "major emitting facility" may not be built or modified unless it uses "the best available control technology for each pollutant subject to regulation. …

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