INSIGHT: Critical climate case to air at US Supreme Court

20 February 2014 16:29  [Source: ICIS news]

By Joe Kamalick

US high court could curb EPA climate rulesWASHINGTON (ICIS)--The US Supreme Court next week will hear arguments in what could stand as a landmark case defining how far the Environmental Protection Agency (EPA) can go in its broad campaign to limit emissions of carbon dioxide (CO2) by industry.

On Monday 24 February, the high court will hear arguments on whether EPA has authority under the Clean Air Act (CAA) to impose limits on greenhouse gas (GHG) emissions by manufacturers and a broad array of other industrial sites.

The case grows out of the Supreme Court ruling of 2 April 2007 which held that if EPA were to determine that CO2 was harmful to the nation’s environment and human health, the agency had an obligation to regulate it.

On the strength of that court decision, EPA in 2009 issued its formal “endangerment finding”, ruling that CO2 and other greenhouse gases were causing global warming, and that phenomenon posed risks to the nation’s environment and Americans’ health and consequently CO2 was subject to the agency’s regulation under the Clean Air Act.

That endangerment finding is the basis for all subsequent regulatory moves by EPA to reach and limit greenhouse gas emissions from any source.

The agency initially exercised that claimed authority to set emissions limits for new automobiles and light trucks, and then moved to impose caps on CO2 emissions by non-mobile or “stationary sources”, meaning power plants, factories, other manufacturing facilities - almost anything that burns fossil fuels.

But in a decision issued late last year, the Supreme Court said it would consider multiple challenges to the EPA’s greenhouse gases rules, filed by chemical industry groups, electric power producers and a broad array of other manufacturers, state governments and members of Congress who contend that EPA has overstepped its authority.

In commenting earlier on the high court’s decision to take the case, Rich Moskowitz, general counsel at the American Fuel & Petrochemical Manufacturers (AFPM), said that next week’s hearing before the Supreme Court “brings us one step closer to correcting a very costly regulation that will put significant strain on every state’s resources”.

Moskowitz said that EPA’s interpretation of the Clean Air Act “would transform a permitting regime designed by Congress to address the largest industrial sources’ emissions of criteria pollutants to a far-reaching regulatory programme that potentially applies to thousands of small sources that Congress never intended to be subjected to onerous permitting requirements”.

Moskowitz said that he hopes for a win in the Supreme Court, a ruling that would stand as “a strong statement that EPA does not have the latitude to rewrite the Clean Air Act”.

If the high court rules in favour of AFPM and the multitude of other industry petitioners, “EPA would essentially have to go back and implement the CAA as Congress intended instead of trying to regulate greenhouse gases”, he said.

The American Chemistry Council (ACC) said that "EPA's flawed regulations [of GHG emissions] would impose new requirements on potentially millions of stationary sources across the country".

"We hope that the court will correct EPA's egregious misreading of the Clean Air Act, which even the agency concedes leads to 'absurd results'", ACC added.

In expanding its reach to GHG emissions by stationary sources, the EPA was obliged to issue a “tailoring rule” because as defined in the CAA, any source that emits more than 250 tonnes annually of a regulated substance is subject to EPA limits.

But because that criteria would have required EPA to impose GHG regulations on possibly millions of facilities across the country - even a donut shop likely emits more than 250 tonnes of GHG annually - the agency redefined or “tailored” the CAA's major emitter criteria, raising the emissions threshold from 250 tonnes to 100,000 tonnes, to avoid what EPA itself called an “absurd result”.

Opponents of the EPA’s GHG rules contend that the agency has no authority to unilaterally alter provisions of the Clean Air Act as approved by Congress.

Roger Martella, a lawyer with the Washington, DC, law firm of Sidley & Austin, represents ACC in the court action, and he is cautiously optimistic about the outcome.

“The tailoring rule is part of our argument, and that is part of what the court granted certiorari for,” Martella said.

“This is a good case,” he added, “and I don’t think the court would have granted certiorari unless they wanted to take a good look at the underlying rule.”

Martella noted that at least four of the nine Supreme Court justices must agree to hear a petition. If those four justices are already suspicious of EPA’s actions in extending its GHG rules so broadly, there is but a short distance to winning the case with one more justice joining.

The 2007 Supreme Court ruling that held that EPA could regulate CO2 - if the agency found that it was a “pollutant” and a threat to environment and human health - was decided with a 5-4 vote.

Sam Kazman, general counsel at the conservative Competitive Enterprise Institute (CEI), one of the plaintiffs, noted earlier that a favourable ruling by the high court “will put the brakes on EPA’s unprecedented regulatory barrage of global warming rules”.

“This agency has been acting as if it had a green light to destroy the American economy to prevent the alleged threat of catastrophic global warming,” Kazman said.

“But for 17 years, nature hasn’t cooperated with EPA’s climate models, and now the Supreme Court might not cooperate with EPA’s climate jurisprudence,” he said, referring to the lack of any global warming since the mid-1990s.

EPA’s climate models and those of the UN hold that as global emissions of CO2 increase, Earth’s atmosphere will continue to warm further. However, while worldwide CO2 emissions have continued to increase substantially since the mid-90s, there has been no measurable increase in the planet’s atmospheric temperature.

“We are cautiously optimistic that the court has opened the door to something, a decision that will at least delay if not entirely halt EPA’s damaging climate regulations on stationary sources,” Kazman said, adding: “It could be a very wide-ranging decision.”

The high court is likely to rule on the matter by June this year.

Paul Hodges studies key influences shaping the chemical industry in Chemicals and the Economy

By: Joe Kamalick
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