IPR files amicus brief on behalf of the American Thoracic Society in latest Supreme Court case to address application of the Clean Air Act to GHG emissions

At 5 a.m. on Monday, February 24, 2014, members of the Institute for Public Representation’s Environmental Section lined up outside the Supreme Court to secure seats at oral argument for Utility Air Regulatory Group v. EPA, Case No. 12-1146 (see photo at the bottom of this post). A month earlier, on January 28, 2014, IPR had filed an amicus curiae brief in the case on behalf of the American Thoracic Society (ATS). The brief urged the Supreme Court to affirm the D.C. Circuit’s ruling upholding EPA’s Timing and Tailoring Rules, which provide for regulation of greenhouse gas (GHG) emissions from stationary sources under the Clean Air Act’s (CAA) Prevention of Significant Deterioration (PSD) program. As the brief pointed out, to do otherwise would ignore the CAA’s clear instructions to EPA, abrogate EPA’s longstanding interpretation of the Act, and allow for more emissions of harmful air pollution.

ATS is an international educational and scientific organization that represents more than 15,000 health care professionals. ATS was founded in 1905 and works to prevent and fight respiratory disease around the globe through research, education, patient care, and advocacy.  The organization filed its amicus brief chiefly to explain the impacts of GHG emissions and climate change on Americans’ health—and their respiratory health in particular. ATS was also keen to explain why EPA’s approach to GHG regulation would reduce not only harms associated with GHG emissions, but also harms associated with emissions of other air pollutants long regulated under the PSD program.

The Regulations at Issue

The issue in Utility Air Regulatory Group has roots in the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which found that GHGs “without a doubt” fall under the CAA’s “sweeping” definition of “air pollutant.” Once that decision resolved the question of whether the machinery of the CAA should apply to GHGs, EPA began applying the CAA’s various components to emitters of GHGs.

EPA took the first step in that process in 2009 with the issuance of the Endangerment and Cause or Contribute Findings. In those Findings, EPA concluded that GHGs’ presence in the atmosphere threatens the public health and welfare of current and future generations, and further, that motor vehicle emissions contribute to GHG pollution. Accordingly, in May 2010, EPA promulgated the Tailpipe Rule, which set GHG emission standards for light-duty motor vehicles, and, for the first time, limited GHG emissions pursuant to the CAA. Next, in April 2010, EPA anticipated regulations for stationary sources by issuing the Timing Decision, which explains that a pollutant becomes “subject to regulation” under the CAA when compliance is required with the emission standards for that pollutant.  For GHGs, that date was January 2, 2011—when EPA first required compliance with the Tailpipe Rule. However, because regulation under the PSD and Title V provisions is triggered when sources emit regulated air pollutants in excess of statutory thresholds (100/250 tons per year (tpy), depending on the pollutant), and because a great many sources have the potential to emit GHGs in excess of these thresholds, EPA also issued the Tailoring Rule. In that Rule, EPA explained that immediate application of permitting requirements to every stationary source that emits GHGs in excess of the 100/250 tpy threshold would overwhelm the agency’s capacity to regulate GHG emissions from any stationary sources; accordingly, EPA would instead phase in application of PSD and Title V requirements, starting with the largest GHG emitters.

Several states and regulated industries argued that EPA misconstrued the CAA, and petitioned for judicial review of EPA’s Endangerment Finding, Tailpipe Rule, Timing Decision, and Tailoring Rule. EPA defended its statutory interpretation on the grounds that it has, for over thirty years, understood PSD requirements to apply to any pollutant subject to regulation under the Act, and that it has always interpreted Title V (added to the CAA in 1990) to cover the same. The D.C. Circuit consolidated Petitioners’ challenges, and, in June of 2012 unanimously held that “1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules.” The court dismissed for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and denied the remainder of the petitions. The full D.C. Circuit denied petitioners’ motion for rehearing en banc.

The Case

On October 15, 2013, the Supreme Court granted certiorari to answer the following, narrow question: Did EPA permissibly determine that its regulation of GHG emissions from new motor vehicles triggered permitting requirements under the CAA for stationary sources that emit GHGs? In its merits brief, EPA explained why the CAA not only authorizes, but obligates it to regulate GHG emissions from stationary sources now that GHGs are “subject to regulation” under Title II. EPA’s brief also cited precedent to support its authority to enforce the Act’s requirements “one-step-at-a-time.”  Petitioners (briefs available here) advanced several arguments to dispute EPA’s reading of the statute—among them, that Congress did not intend the PSD program to cover GHGs, and that the term “air pollutant” has different meanings in different sections of the Act, such that regulation under Title II does not compel regulation under the PSD program.

ATS’s amicus brief focused on the impacts of GHG emissions and global climate change on human health. ATS highlighted the scientific community’s consensus that mortality will increase due to the effects of anthropomorphic climate change; that children and the elderly will feel the effects most acutely; and that climate change will increase health risks for people suffering from a wide variety of diseases. ATS’s brief also explained how regulating GHG emissions from stationary sources would yield the co-benefit of reducing emissions of other air pollutants, and conversely, how adopting petitioners’ proposals would curtail EPA’s authority to regulate all non-criteria pollutants—not just GHGs.

Oral Argument

Both Petitioners and the Government faced a hot bench at oral argument (click here for the transcript). Petitioners maintained that “any air pollutant” has different meanings in different sections of the CAA, and that Congress did not intend for the PSD program to deal with GHG emissions. Justice Kagan noted that Petitioners’ briefs advanced four different interpretations of “any air pollutant,” and Justice Sotomayor—after pointing out that counsel for the Petitioners had just presented a fifth—asked why, in the face of such ambiguity, the Court should not defer to EPA’s reasonable interpretation.  According to Justice Kagan, “reading ‘any pollutant’ to mean any pollutant except greenhouse gases for reasons that have nothing to do with the purpose of the [CAA] is not a plausible alternative to EPA’s interpretation”—particularly in light of Massachusetts v. EPA. Justice Breyer questioned why EPA and the Court should not read an implicit exception into the Act, as Courts and agencies have in other situations.  He explained,

Statutes all the time have implicit exceptions, and not every statute has such exceptions written in words into it. . . . So what’s the big problem here that everybody seems to have, except me? I mean, what’s the big problem with writing an implicit exception so that you don’t regulate tiny little things which no one normally wants to have regulated?

Chief Justice Roberts questioned why the parties were arguing over the scope of EPA’s authority when, as a practical matter, one approach would address 83 percent of GHG emissions and the other 86 percent. Justice Alito presented the government with another challenge: if—as EPA argued—immediate application of the 100/250 tpy threshold to GHGs would make the PSD program “unrecognizable” to Congress, would not EPA’s goal to eventually apply the thresholds to GHGs achieve the same unrecognizable result? And if that was the case, how could EPA argue that its interpretation conformed to congressional intent? Justice Alito, along with several of the other Justices, also questioned whether EPA had authority to alter the CAA’s numerical thresholds for other pollutants; to this the government answered “yes.” When the Court asked for caselaw to support such authority, the government cited Morton v. Ruiz, 415 U.S. 199 (1974)—a case that, as Justice Kennedy pointed out, was absent from EPA’s brief. Justice Scalia opined that EPA should have adopted a statutory interpretation that avoided the “absurdity” requiring the Tailoring Rule.

As usual, Justice Thomas said nothing.  Justice Kennedy, often the “tie-breaker,”  offered few clues as to where he stood.  The Supreme Court is expected to issue its decision in June, 2014.

IPR braves the cold!

IPR braves the cold!
Pictured (left to right): Jessica Nyman, Jamie Bowers, Aislinn Shaul-Jensen, Lynne Dzubow, TJ Graven, and Stephen Ruotsi


Georgetown Law student Jessica Nyman helped draft this post.


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