Supreme Court Denies Cert. in Greenhouse Gas Permitting Case
Last week, the Supreme Court denied review of the D.C. Circuit’s April 2015 decision on remand from the Supreme Court’s decision in Utility Air Regulatory Group
v. EPA, 134 S. Ct. 2427 (2014) (“UARG”). The effect of this denial is to leave in place the D.C. Circuit decision allowing the EPA-intended permitting requirements for “anyway sources” to remain in effect pending EPA’s revisions of its rules to codify those requirements. Under that regime, proposed sources and
modifications that are “major” for any other pollutant have to undergo Prevention of Significant Deterioration review for greenhouse gases (GHG) if emitted in amounts above 75,000 tons/year.
Although the Supreme Court’s 2014 opinion in UARG
v. EPA declared unlawful the EPA’s Clean Air Act permitting rules to the extent that they would trigger permitting based on GHG emissions alone, the Court left open the door for EPA to include GHG emissions for sources that would require major source permitting “anyway.” Because the Supreme Court was unclear as to whether the current EPA
program for these so-called “anyway sources” should be left in place, a number of petitioners sought relief in the guise of “motions to govern” the proceedings at the D.C. Circuit on remand from the Supreme Court. It was the D.C. Circuit’s April 2015 refusal
to vacate the pre-existing EPA rules for anyway sources that led the Energy-Intensive Manufacturers Working Group (“Working Group”) to file a petition seeking Supreme Court review.
The Working Group, an industry group representing iron, steel, paper, aluminum, glass, cement, and chemical interests, argued that the D.C. Circuit should have vacated the existing regulations, and EPA should be required to conduct new rulemaking if it wants to regulate greenhouse
emissions from anyway sources. On January 19, 2016, the Court rejected the petition without comment, leaving in place EPA’s current approach for regulating greenhouse gas emissions from anyway sources.
As explained in a previous
post, EPA released a
memorandum providing initial guidance on GHG permitting following the Court’s decision in UARG v. EPA in 2014. That guidance remains operative while EPA undertakes rulemaking (in no particular hurry) to adjust its rules accordingly.