Well today I was surprised that the Supreme Court granted certiorari to one of the questions from the consolidated, complex, greenhouse gas cases decided by the DC Circuit Court of Appeals. In that case, the DC Circuit upheld the EPA’s endangerment finding for greenhouse gases, held that plaintiffs didn’t have standing to challenge another part of the rule (how it is phased in), and upheld the agency’s decision that that endangerment finding made greenhouse gases an “air pollutant” for purposes of triggering the PSD program, one part of the Clean Air Act that requires technology on new and modified major sources. The Supreme Court today stated that it would review the last part — whether or not this language “triggers” the required EPA regulation.
Some argue that the fact that the Court granted review means that they plan to overturn EPA’s decision. I don’t agree. It takes only 4 justices to grant cert., but 5 to overrule the lower court. This could be an example of that dynamic. Or, the Court may have felt it important to take the issue because so many states (including Texas) have challenged the consolidated rules.
The language at issue doesn’t seem to controversial…what does “regulated pollutant” mean? Does it have to be regulated under a specific section or just regulated? Once again, we are caught up in the ambiguities of the Clean Air Act, and who gets to interpret them, because the Act hasn’t been amended since 1990.
Even if the Supremes did overturn this section, in the long run it may not matter too much. The EPA is moving to regulate virtually the same sources (and more) in virtually the same way, under a different section of the Act. It might provide some breathing space but it doesn’t change the thrust of this EPA. Perhaps with a different administration, a decision on this might make a difference. I guess we will see.