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Supreme Court to Review Stationary Sources Rules

The U.S. Supreme Court on Tuesday agreed to consider whether the U.S. Environmental Protection Agency (EPA) has the power to require greenhouse gas (GHG) permits for big stationary pollution sources, including power plants, factories and refineries.

In an order, the nine justices said they would consider one question: "Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases."

Oral arguments before the high court are expected in 2014.

Various states, industry and conservative groups asked the high court to review every facet of a sweeping appeals court decision in 2012 that upheld EPA's first wave of climate change regulations and its authority to impose future rules over greenhouse gas (GHG) emissions.

The U.S. Court of Appeals for the District of Columbia Circuit last year issued a unanimous 82-page ruling that left intact EPA's regulations and authority to craft rules to help combat GHG emissions (see Daily GPI, June 27, 2012). The three-judge panel found at the time that the emissions were a threat to human health and welfare, a finding that provided the underpinning for EPA to continue to regulate emissions from vehicle tailpipes, as well as smokestacks and other sources.

EPA's permitting program to be reviewed by the Supreme Court concerns rules for large new and modified pollution sources which began taking effect in 2011 (see Daily GPI, May 14, 2010). EPA now is crafting rules that would set first-time carbon emissions limits for new and, later, existing power plants (see Daily GPI, Oct. 1, 2009).

EPA's clampdown on power plant emissions has been a factor in driving utilities away from coal-fired power to natural gas.

The ruling by the appeals court last year was considered a victory for the EPA and particularly for the Obama administration. The Supreme Court's decision to take the case under review Tuesday is viewed as a loss for the administration and particularly for conservation groups. Pundits view today's court as leaning toward the conservative side that favors less government regulation.

"Today the Supreme Court granted review of one narrow question whether certain Clean Air Act permitting requirements have been triggered for large stationary sources," said Environmental Defense Fund attorney Vickie Patton. "We look forward to presenting our case to the high Court to show that EPA's long-standing permitting requirement that the nation's largest industrial emitters do their fair share in cutting carbon pollution by deploying cost effective technologies when they are constructing or rebuilding is manifestly anchored in law and science."

However, American Petroleum Institute General Counsel Harry Ng said the EPA is seeking to regulate U.S. manufacturing "in a way that Congress never planned and never intended. The Clean Air Act clearly only requires pre-construction permits for six specific emissions that impact national air quality -- not greenhouse gases."

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