Supreme Court to Review EPA's Authority to Regulate Stationary Sources of GHG

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Stoel Rives attorney Allison Smith provides a comprehensive review in Law360 of six D.C. Circuit Court of Appeals cases the U.S. Supreme Court recently consolidated for hearing in early 2014, all stemming from the D.C. Circuit's decision in Coalition for Responsible Regulation v. EPA. Specifically, the Supreme Court granted certiorari on the narrow issue of whether the Environmental Protection Agency (EPA) permissibly determined that its regulation of the emission of greenhouse gases from new motor vehicles triggered permitting requirements under the Clean Air Act Prevention of Significant Deterioration (PSD) program for stationary sources that emit greenhouse gases.

Smith describes how EPA took a series of actions following the Supreme Court's holding in Massachusetts v. EPA that the agency had a statutory obligation to regulate greenhouse gases. This included an initial endangerment finding and a tailpipe rule that set greenhouse gas emissions standards for cars and light trucks, both of which were upheld by the D.C. Circuit. EPA also adopted the 'tailoring rule,' which requires major stationary sources undertaking construction or modifications that exceed defined greenhouse gas emission levels to obtain PSD permits. The Supreme Court will not consider the substance of the tailoring rule, but rather EPA's authority to enact the tailoring rule based on the adoption of the tailpipe rule.

Smith notes that the EPA's draft new source performance standards for power plants, currently proposed at 1,000 to 1,100 lb. CO2e/megawatt-hour, would not be directly affected by the Supreme Court's review of Coalition for Responsible Regulation.

Read the full article (PDF)

"Zeroing In On EPA Authority Over Stationary Sources" was published by Law360, October 28, 2013. Subscription required

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Allison C. Smith
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