More Musings on the Cert Petition Grant in the Greenhouse Gas Emissions Case

Does Regulating Greenhouse Gases Lead to Absurd Results and What Happens Once the Court Rules?

post-top-smokestacksIn follow up to my early morning post of this morning, here are a couple of additional points.

1)  A related but different argument petitioners are making about why the PSD provisions don’t apply to the regulation of greenhouse gases is that the application of the provisions would lead to absurd results.  The absurd results come about because the definition of “major source” in the PSD statutory language — 100 tons per year of any air pollutant — would sweep in a huge number of small sources that Congress never intended to regulate.  In order to avoid absurd results, the Court should find that the plain language of the PSD provisions doesn’t apply.  Stanford Law Professor Michael Wara asked me about this argument in the comments section of my last post.

As I responded to Michael, I don’t buy the absurd results argument.  Here’s why.  EPA has faced other circumstances in which statutory language sweeps in a huge number of potentially very small sources.  One of those provisions is the definition of “point source” under the Clean Water Act, which includes “any discernible, confined and discreet covenyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissue, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  In 1973 EPA attempted to exempt from this language a number of types of sources in order to keep the number of sources it was regulating to something short of absurd. Among other things, EPA argued that the language of the statute gave it power “to instruct each individual farmer on his farming practices.” In NRDC v. Costle, 568 F.2d 1369 (1977), the D.C. Circuit struck down EPA’s regulations exempting various sources because the regulations  violated the plain language of the Clean Water Act.  The court also suggested that EPA could “make full use of its interpretational authority” by using options to minimize its administrative burdens.  These options included area-wide regulation and general permits that could be applied to small sources.

EPA has taken a similar tack in regulating stormwater pollution under the CWA, which again applies to a huge number of small sources.  They have used — as have states that implement the CWA — general permits that significantly reduce the administrative burden on EPA and administering states and require no individualized permit determinations.    It’s not hard to imagine EPA taking a similar approach in regulating small sources of GHGs.  And Congress always has the option of amending the reach of the CAA if it doesn’t want small sources regulated.  It took exactly such a tack after the NRDC v. Costle decision when in 1987 Congress amended the definiton of point source to exempt “agricultural stormwater discharges and return flows from irrigated agriculture.”  33 U.S.C. 1362(14).

2)  Another point worth addressing is what happens after the Supreme Court rules on whether the PSD provisions apply to greenhouse gas emissions.  If the Court rules that the PSD provisions apply, then it’s possible they’ll move onto an important question addressed in the lower court opinion.  Do the petitioners have standing to challenge the tailoring and timing rules EPA issued to apply the PSD provisions to large sources of greenhouse gas emissions.  As I’ve explained previously, the Court of Appeals said they lack standing.  The Court could review that question.  If the Court were to find that petitioners have standing to challenge the rules, then presumably it would then remand the case back to the D.C. Circuit to ask it to rule on whether the tailoring and timing rules are valid under the Clean Air Act.

If the Court rules that the PSD provisions don’t apply and does so on the grounds that the provisons only apply to NAAQS pollutants (see my post from this morning), then here’s another potential wrinkle.  There’s a very good argument that EPA should be regulating greenhouse gases as criteria pollutants under the NAAQS provisions (Section 108 and 109).  The argument is complex but here’s the short version.  EPA has already found that greenhouse gases are pollutants that endanger health and welfare.  Section 108 of the CAA directs that the EPA Administrator shall, under Section 108(a) of the Act, list air pollutants:

(A) emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;[and]

(B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources….

EPA is sitting on a petition from the Coalition for Biological Diversity that argues that the Administrator must list greenhouse gases under Section 108.  If the PSD provisions don’t apply except to NAAQS pollutants, environmental groups might well push harder on the argument that EPA has no choice but to regulate GHGs under Section 108. If greenhouse gases are, in fact, listed as criteria pollutants, a far more stringent regulatory regime would kick in, requiring all 50 states to regulate numerous sources of greenhouse gases.    Wouldn’t it be ironic if industry petitioners got the Supreme Court to take a case that  resulted in greenhouse gas emissions being listed under the NAAQS provision as criteria pollutants?





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Reader Comments

5 Replies to “More Musings on the Cert Petition Grant in the Greenhouse Gas Emissions Case”

  1. Oh, man. I thought the GHG NAAQS conundrum was dead for sure, but I see your point. I stick think it’s really unlikely EPA ends up there since Congress would stop it, but I think the legal argument that the agency has to do it is pretty strong. wrote a paper in this back in 2009:

  2. Also, I confess I don’t see how the court reaches the issue of standing to challenge the tailoring rule given how it’s framed the issue in the cert grant – that seems pretty narrowly directed at the timing rule. But I’m no expert on reading cert grant tea leaves.

    And even if I’m right, the tailoring rule isn’t necessarily safe since a different plaintiff might have standing.

    1. Nathan — I agree with you that the cert grant doesn’t address standing. But standing is one of those weird jurisdictional questions that can be raised at any time and I can imagine — though by no means have any idea whether it would happen — that the reasoning could be something like this: yes the PSD provisions cover GHGs but the tailoring rule, even though it isn’t before us, clearly raises the question of whether EPA has reasonably dealt with the issue that petitioners claim would lead to absurd results. The DC Circuit didn’t face that question because it dismissed the claim on standing grounds that seem wrong to us. So yes petitioners have standing and now, DC Circuit, decide whether the tailoring rule (and secondarily the timing rule, which is less critical) is a permissible interpretation of the statute. But who knows?

  3. Hi Ann, Thanks for explaining the implications of the cert petition. One major downside to the NAAQS route could be timing. Bill Pedersen addressed this possibility at a Duke workshop two years ago and predicted that it could take close to a decade to promulgate a NAAQS for GHG’s, taking into account development of the record and litigation.

    Any thoughts on the timing implications for PSD versus 111d versus NAAQS (versus 115?!)?

    Go BoSox!

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

READ more