Jack Sparrow: You already have my payment. One soul to serve
on your ship is already over there.
Davey Jones: One soul is not equal to another.
Jack Sparrow: Ah-ha! So, we've established my proposal as sound in principle.
Now, we're just haggling over price.
In the second installment of the popular Pirates of the Caribbean franchise, Captain Jack Sparrow finds himself trying to avoid paying Davey Jones the price of his soul by substituting another. Davey Jones is unimpressed by the offer, but slips by establishing that there could be a price for which he would give Jack his freedom.
With the most recent Supreme Court decision on Environmental Protection Agency’s (EPA) greenhouse gas (GHG) regulations, those hoping that one day the Supreme Court would undo its decision that approved EPA’s regulations of GHGs are a lot like Davey Jones – like it or not, the die has been cast, there’s no going back and we’re now just haggling over the terms.
In Utility Air Regulatory Group v EPA, by a 7-2 vote, the Supreme Court ruled that EPA had the authority under the Clean Air Act (CAA) to regulate stationary sources of air emissions, like power plants, but on a vote of 5-4, refused to allow EPA to regulate facilities that emitted only GHG. If the facility in question was already regulated because of other air pollutants, then EPA could impose GHG emission restrictions.
In a previous post, I outlined the way EPA successfully began regulating GHG for mobile sources of pollution. The Supreme Court agreed that EPA could regulate GHGs under the CAA. EPA then concluded that under the CAA once a pollutant is regulated for one source (i.e., mobile sources), it is regulated for all sources (i.e., stationary sources), and began plans to do just that.
In 2010, EPA issued its “Tailoring Rule,” which established a phased implementation of permitting requirements for new stationary sources and existing stationary sources that modified their emissions by a specific amount. Those sources were required to install “best available control technology” or BACT.
The CAA defines as a “major” facility thresholds are 100 or 250 tons of a regulated pollutant per year, subjecting it to regulation. Such a benchmark for GHGs though would make virtually every source a “major” source and subject to regulation. So, EPA decided that it would for now regulate only those sources that emitted amounts in excess of 100,000 carbon dioxide equivalents or expanded operations that could emit 75,000 tons.
First, the Supreme Court considered whether EPA was required by the CAA to regulate GHG emissions. The Court found that while EPA may regulate GHGs, the CAA did not require it to do so. What the CAA requires is that EPA must explain its decision to regulate or not regulate GHG emissions.
Next, the Supreme Court considered whether EPA’s attempt to raise the threshold for regulation for GHGs was permissible. While EPA has deference in establishing standards where a statute is ambiguous, it has no such power where the legislative language is clear. Here, the 100 and 350 tons per year triggers were unambiguous and EPA did not have the discretion to expand them.
EPA’s regulation of GHGs at stationary facilities was not dead, however. There are facilities that are already subject to CAA requirements because they met the requirements for other pollutants. According to the Supreme Court, these “anyway” sources, could be regulated for GHG emissions. And, luckily for EPA, these sources represent 83 percent of the largest GHG emitters, while the ones excluded from regulation by the Supreme Court’s decision only represent three percent of sources.
Those hoping that the Supreme Court would reverse its earlier decision to allow EPA to regulate GHGs have come away disappointed. While EPA’s regulatory reach is diminished somewhat, ultimately most of the sources that would have been regulated by the Tailoring Rule will remain regulated. At this point, the law is well established that EPA has the authority to regulate GHG emissions and, unless Congress and the president enable legislation that overturns the status quo, we’ll be left to negotiating the scope of regulation, not the reality of it.
TAGS: Environmental Protection Agency; Clean Air Act; Carbon, Greenhouse Gas; Supreme Court
- Senior Attorney
A senior attorney in Plunkett Cooney’s Bloomfield Hills office, Saulius K. Mikalonis leads the firm's Environment, Energy and Resources Law and Cannabis Law industry groups.
Mr. Mikalonis focuses his practice on all aspects of ...
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