The Brookings Institution has offered comment on the Supreme Court rules on Environmental Protection Agency (EPA) regulations.
At issue was whether EPA was right to apply the Clean Air Act’s Prevention of Significant Deterioration (PSD) permit requirements to polluters solely on the basis of their greenhouse gas emissions – which are now being regulated under other parts of the act.
Complicating the question was the fact that the Clean Air Act’s numerical thresholds for applicability, if applied literally, would encompass tens of thousands of sources that were previously not subject to permitting, causing administrative confusion.
EPA has hoped to avoid this scenario by ‘tailoring’ the statute so that it would apply only to the largest greenhouse gas emitters, and thus achieve a more reasonable application of the section.
According to Brookings, conservative justices found that the overall language of the act made EPA’s application impermissible – meaning that the agency had no business applying PSD to any sources based solely in their greenhouse gas emissions.
The Court’s rejection of EPA’s tailoring was quite emphatic: “Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers… The power of executing laws…does not include the power to revise clears statutory terms that turn out not to work in practice”.
Phillip A. Wallach of Brookings highlights that the decision was far from a complete loss for the EPA. The Court decided that those sources subject to PSD permits anyway – because of their emissions of conventional pollutants – can properly be forced to apply the ‘Best Available Control Technologies (BACT) to their greenhouse gas emissions.
Only Justices Alito and Thomas dissented from this part of the decision, taking the opportunity to reiterate their opposition to the basic holding of Massachusetts v. EPA, the 2007 case that set in motion the application of the Clean Air Act to greenhouse gases in the first place.
Wallach holds that the implications of this case have little to do with the future of the recently proposed and much discussed Clean Power Plan, through which the Obama administration will regulate greenhouse emissions from existing power plants under §111(d) of the Clean Air Act. According to him, the PSD case was always something of a sideshow in regards to policy substance, with the main event unfolding only as the EPA finalises its main power plant emissions controls in the following years. At that point, we are sure to see another round of litigation, with much higher practical stakes. For now, the EPA has sustained a largely symbolic rebuke, but there is every reason to believe that it will still be moving full steam ahead.
Adapted from a report by Emma McAleavey.
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