Public Utilities Reports

PUR Guide 2012 Fully Updated Version

Available NOW!
PUR Guide

This comprehensive self-study certification course is designed to teach the novice or pro everything they need to understand and succeed in every phase of the public utilities business.

Order Now

Supreme Court RoundUP: Pivotal Cases for the Clean Air Act

How greenhouse gases and Best Available Control Technology could shape the regulatory landscape—and the environment.

Fortnightly Magazine - December 2006

the EPA, not in any other official” and that “Congress recognized the substantial challenges that may attend determinations about air pollution and endangerment, and did not expect or desire the administrator to adhere to any rigid or mechanistic scientific formula in making decisions under conditions of uncertainty.” 76

In rejecting petitioners’ claims that it may not decline to regulate GHGs, EPA argues that section 202(a)(2) expressly conditions the establishment of motor vehicle emission standards on the discretionary exercise of EPA’s judgment. 77 Since EPA identified a “variety of sound reasons” 78 for declining to regulate, the D.C. Circuit properly followed the “established principles of administrative law” that recognize both EPA’s broad discretion in deciding whether to initiate regulation and the “particular deference” to which agencies in general are entitled. 79 This discretion, EPA argues, extends to the threshold determination of whether the scientific record is sufficiently well developed to make an endangerment finding. 80

May EPA Regulate GHGs Under the CAA?

Petitioners make three broad arguments with respect to EPA’s authority to regulate GHGs. First, petitioners assert that, contrary to EPA’s determination, GHGs fit easily within the definition of an “air pollutant” subject to regulation under Section 202(a)(1). 81 Petitioners claim that, in declining to regulate, EPA misinterpreted the statute. 82 Next, petitioners argue that EPA was incorrect in concluding that Congress intended to prohibit regulation GHGs. 83 Finally, petitioners argue that EPA’s conclusion conflicts with other provisions of the CAA. 84, 85

EPA, on the other hand, argues that its conclusion that it lacks authority to regulate GHG emissions from new motor vehicles is reasonable for several reasons. First, EPA argues that “key provisions” of the CAA “cannot be coherently applied” to GHG emissions. 86 Specifically, EPA argues that the National Ambient Air Quality Standards program focuses on the actions taken by individual states to comply with national standards, with distinct regulatory regimes for different areas. 87 Because GHG emissions are “well-mixed globally throughout the atmosphere,” EPA contends that it would have no “practical basis” for distinguishing between complying and non-complying areas. 88 EPA argues that increasing fuel economy standards would be the only “practical” way EPA could limit vehicle emissions of carbon dioxide, but such regulations would “subvert the implementation by the Department of Transportation of the Energy Policy and Conservation Act,” which was expressly created by Congress to address fuel economy standards. 89

Further, EPA argues that more recent laws—including 1990 additions to the CAA and the 1998 Kyoto Protocol—reflect Congress’ “intent to assimilate more information as a predicate to legislation or international agreements to address global climate change.” 90 Finally, EPA argues that regulation of GHGs would have “potentially vast economic and political consequences,” since “virtually every sector of the U.S. economy is either directly or indirectly a source” of GHG emissions. 91 Moreover, since the “problem” of GHG emissions is “global” in nature, EPA argues that Congress “cannot reasonably be thought to have intended that EPA would regulate [GHG] emissions from new motor vehicles but from no other source.” 92

Is There Even a Controversy for The