The U.S. Supreme Court today issued its long-awaited decision in Utility Air Regulatory Group v. Environmental Protection Agency, the justices’ third encounter with climate change law and policy. In a Solomonic ruling, the Court ruled that EPA lacks authority to require the operators of “stationary sources” of greenhouse gas emissions (power plants, factories, etc.) to obtain a permit under the Prevention of Significant Deterioration (PSD) or Title V provisions of the Clean Air Act. However, the justices went on to conclude that EPA can require stationary sources that require permits based on their emission of conventional air pollutants to simultaneously comply with Clean Air Act requirements with respect to those sources’ greenhouse gas emissions.
Justice Scalia wrote the Court’s opinion reversing the D.C. Circuit’s opinion in favor of EPA in part, and affirming in part. He was joined by Chief Justice Roberts and Justices Kennedy, Alito and Thomas in ruling against EPA, 5-4, on the issue of the Agency’s “standalone” authority to regulate greenhouse gas emissions under the CAA. In contrast, Scalia and six other justices (the Chief, Kennedy, Breyer, Sotomayor, Kagan and Ginsburg) upheld EPA’s authority to regulate what Scalia termed “anyway” sources of GHG emissions–those sources for which EPA also has the authority to regulate conventional air emissions.
My Legal Planet colleagues and I will be commenting further on the details and practical consequences of today’s Utility Air Regulatory Group ruling in the days and weeks to come.