GHG rules are coming soon. What happens next will depend on how states react.
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.
insulated from review altogether,” since its Duke Energy position was “not articulated until decades after the time for challenging the [NSR rules] had expired.” 48 In light of the civil and criminal penalties that can result from a PSD violation, Duke argues, “this Catch-22 contravenes fundamental fairness, as well as a presumption that agency decisions are subject to judicial review.” 49
What Is at Stake?
Whether decided on procedural or substantive grounds, this case has important implications for the regulated community. If decided on procedural grounds, this case could heighten the importance of pre-enforcement review of CAA regulations. The court could decide that the D.C. Circuit had exclusive jurisdiction over the interpretive question at issue under section 307 pre-enforcement review procedures, and that, by failing to challenge EPA’s interpretation through the procedures allowed under section 307, Duke waived the opportunity to do so. Thus, this case could put the regulated community on notice to pay careful attention to new interpretations of regulations and policies as they are issued because a Section 307 challenge could be the only avenue for review.
If the court holds that the Fourth Circuit acted within its authority, it will then have to address the substantive split between Duke Power and Cinergy, and also consider the tension with the D.C. Circuit’s decision in New York . This ultimately is a potential morass involving nearly 30 years of regulatory implementation and interpretation. In light of EPA’s change in policy since the institution of this enforcement action, it is unclear whether resolution of the substantive question—the interpretation of “increase” under PSD—will lead to an immediate change in EPA’s enforcement approach. Nonetheless, it could provide important guidance to both the agency and the entities it regulates with respect to the proper interpretation of this and other provisions going forward.
Massachusetts v. EPA
Massachusetts concerns EPA’s denial of a petition to regulate certain GHGs from motor vehicles pursuant to section 202(a)(1) of the CAA. 50,51 In its notice of denial, EPA concluded that it “[could] not and [should] not regulate GHG emissions from U.S. motor vehicles under the CAA” based on several factors: 52
1. EPA lacks authority to so regulate under the CAA; 53
2. Regulation would impermissibly interfere with Department of Transportation fuel-economy standards; 54
3. EPA’s has discretionary authority to address emissions; 55 and
4. Lack of a evidence of a “causal linkage” between GHGs and climate change. 56
Pursuant to section 307(b)(1) of the CAA, petitioners challenged the denial in the D.C. Circuit. 57 Of note, the D.C. Circuit reserved the question of petitioners’ standing. Specifically, the D.C. Circuit could not resolve whether the petitioning states sufficiently could establish some injury to themselves flowing from EPA’s refusal to regulate GHGs from automobiles, which injury could be redressed by the court’s decision. 58 Without such an injury, the court under Article III of the United States Constitution lacks a “case or controversy” that it can decide. 59 Rather than resolving that issue, however, the D.C. Circuit chose to proceed on the merits with respect to EPA’s decision not