Clean Air Act

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Challenge to the EPA’s Clean Power Plan Regulations

    Obama’s third top domestic priority, EPA’s Clean Power Plan regulations, proposed in preliminary form in June 2014—which attempt to drastically cut carbon pollution from power plants—is also under attack in the courts. Unlike Texas Governor Abbott’s and House Speaker Boehner’s suits, challenges to the final version of these rules, expected imminently, will not be dismissible as hoked up political maneuvers.  Coal and other energy industries, and coal-producing state governments will allege indisputably substantial impacts from the regulations; moreover, specific Clean Air Act provisions authorize parties affected by such rules to seek judicial review.

    But, on the merits of EPA’s CAA authority to adopt the sweeping CPP rules, both conservative and progressive commentators have suggested that King v. Burwell could indeed be the game-changer that Professor Gluck noted, not necessarily to the Obama Administration’s advantage.  In the words of environmentalist Harvard law professor Jodi Freeman, potential new danger for the CPP arises from Chief Justice Roberts’ “striking and significant departure” in ruling that, henceforth, courts must, on their own, interpret ambiguous statutory provisions, in cases where, as noted above, “questions of extraordinary political and economic significance” are at stake – rather than defer to an agency’s “reasonable” or “permissible” reading. 

    EPA rests its claim to promulgate the CPP rules on its resolution of a mind-numbing dispute over an intricate provision of the Clean Air Act, readily susceptible to being labeled, “ambiguous.”  Due to what one prominent environmental law expert has derided as a “glitch” in the 1990 amendments to the Clean Air Act, Congress included two versions of the same CAA subsection (§111(d)); one version pretty clearly provides authority for the CPP rules, while the language of the second, read literally, can be interpreted not to do so.  EPA claims the first version is the correct one.

  • July 1, 2015
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    In its last decision of the 2014 term, the Supreme Court decided Michigan v. EPA, ruling that EPA must consider costs before deciding to regulate toxic air pollutants from power plants.  Lisa Heinzerling has identified the many questions that remain open in the wake of the Court’s decision.  And Dan Farber and Ann Carlson also provide insightful commentary on the meaning of the decision. As all three suggest, the lasting practical effect of the Court’s decision on mercury and other toxic emissions from power plants remains to be seen.

    Without retreading ground that has been well-covered already, I want to offer two observations.  First, I want to offer some (very cautious) optimism that the legal rule provided by the Michigan v. EPA decision has little effect.  Read broadly, the decision could require agencies in many contexts to consider costs before regulating.  I’m not convinced, however, that the decision necessarily tells us anything about when agencies must consider costs. 

    The Court offers several reasons that EPA unreasonably interpreted its authority to regulate power plants without accounting for the billions of dollars of costs such regulation might impose: 

    First, the Court explains that the toxic air pollution provisions of § 112 of the Clean Air Act differentiate between power plants and other stationary sources.  For sources other than power plants, the Act essentially allows EPA to consider, at most, health and environmental effects.  In contrast, the Act requires EPA to regulate power plants only if “necessary and appropriate.”  This contrast, the Court offers, must mean something.

    Second, the Court opines that appropriate regulation generally requires an agency to think about both the benefits of regulation and its cots.  This suggests, that could be read to presumptively require agencies to consider costs in making regulatory decisions. 

  • March 23, 2015

    by Caroline Cox

    Nina Totenberg of NPR previews today’s oral arguments for a Supreme Court case that considers whether a Confederate flag on a license plate is an exercise of free speech.

    At Hamilton and Griffin on Rights, Leslie Shoebotham considers City and County of San Francisco v. Sheehan, in which the Supreme Court will examine what duties the Americans with Disabilities Act places on police officers.

    The Editorial Board of The New York Times argues that in a case before the Supreme Court about the Clean Air Act, the Court should not limit the EPA’s authority to carry out the law’s purpose.

    Chris Geidner writes at Buzzfeed about Jim Obergefell, a plaintiff in the Supreme Court challenges to state bans on same-sex marriage.

    At the New Republic, Ian Millhiser claims that the Supreme Court cannot be trusted to protect voting rights.

  • November 21, 2014
    Guest Post

    by Lisa HeinzerlingJustice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. The author was a political appointee at the Environmental Protection Agency from January 2009 to December 2010. She served on the EPA Presidential Transition Team in 2008.

    The Environmental Protection Agency is under court order to issue, by December 1, a proposal to retain or revise the national air quality standards for ground-level ozone. Scientific studies have linked ozone, also known as smog, to a variety of adverse effects on public health and welfare. EPA's expert staff and its outside scientific advisors have recommended, based on this scientific evidence, that EPA set new, stronger standards for ozone. The Clean Air Act requires that air quality standards – "primary" standards for public health, "secondary" standards for public welfare – be set at levels "requisite to protect" public health and welfare. A central question for the proposal to be issued by December 1 is whether the current air quality standards for ozone, set at 75 parts per billion of ozone in the ambient air, adequately provide such protection.

    At the moment, EPA's preferred approach to the ozone standards awaits White House clearance. EPA has sent a regulatory package – likely including, as is customary, the proposed standards, a formal explanation of EPA's choices, and an economic analysis of the proposal – to the White House for review. Under executive orders issued by Presidents Bill Clinton and Barack Obama, the President has asserted the authority to review significant agency rules like the ozone standard and to reject or revise them if they are not consistent with his policies or priorities. President Obama exercised this self-given power previously in the context of ozone, when in 2011 he ordered then-EPA Administrator Lisa P. Jackson to withdraw stronger, revised national air quality standards for ozone. As I will explain, President Obama's past exercise of power hangs over the current decision whether to revise the ozone standards.

    Before President Obama ordered Administrator Jackson to withdraw the revised ozone standards she had developed, the EPA under Administrator Jackson had been working on the revised standards for years, indeed since the day President Obama took office. Revision was necessary, in EPA's view, because standards set during the administration of President George W. Bush had departed from the scientific evidence indicating that stronger rules were necessary to protect public health and welfare. Indeed, EPA's scientific advisors on air quality had reacted to the Bush-era standards by issuing a pointed, unsolicited rebuke, stating that the advisors did not endorse the Bush standards. Strengthening the Bush-era ozone standards was a core EPA priority in the early days of the Obama administration, offering an opportunity both to protect public health and welfare and to return the agency to scientifically sound decision making. No one would have guessed, then, that President Obama would eventually order Administrator Jackson to back off and leave the Bush-era standards in place. But that's what happened.

  • February 24, 2014
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter

    The U.S. Supreme Court will hear argument today in a case addressing EPA’s application of the Clean Air Act to greenhouse gases (“GHGs”). This will mark the third time the Court has dealt with a case related to climate change. Like its predecessors, this case has generated lots of attention, both from regulated parties and the media.

    Despite the attention, one of the most significant features of the case is, perhaps surprisingly, what is not at stake. This case had the potential to call into question the foundations of the Obama Administration’s efforts to address climate change. Before the D.C. Circuit, industry groups and a coalition of states opposed to federal regulation of GHGs, challenged an array of EPA regulatory decisions. These challengers sought to overturn: (1) EPA’s determination that GHGs endanger public health and welfare; (2) EPA’s further determination that GHGs from cars and trucks contribute to the danger; (3) EPA’s regulation of tailpipe emissions of GHGs from cars and trucks; (4) EPA’s reaffirmation of its long-held view that once an air pollutant is regulated, new and modified major stationary sources of that pollutant are regulated under the Prevention of Significant Deterioration Program (“PSD”); and (5) EPA’s decision to phase-in the applicability of PSD and exempt, at least in the short-term, sources that would plainly be covered by the statutory text. The D.C. Circuit ruled in favor of EPA on all counts, and the challengers sought Supreme Court review of all of those issues and also asked the Court to overrule its earlier decision in Massachusetts v. EPA, which held that GHGs are an air pollutant. The Court declined the vast majority of that invitation, deciding instead to consider only the fourth issue described above, whether EPA properly interpreted the statute to automatically trigger regulation under PSD once a pollutant is otherwise regulated.

    The limited grant is important for a couple of reasons. It suggests that the Court has little appetite to revisit the question of whether GHGs are air pollutants. It further indicates that the Court is willing to leave undisturbed, at least for the time being, EPA’s decision that GHGs endanger public health and welfare. Those two determinations underlie virtually any regulatory action under the Clean Air Act, and the Court’s denial of certiorari on those points leaves the agency in a strong position to continue regulating GHGs. Practically speaking, the limited grant means that any decision will have little consequence beyond the PSD Program itself, and that program was never likely to be the centerpiece of an EPA climate strategy under the Clean Air Act. 

    Nonetheless, the Supreme Court’s decision in this case will likely be invested with significant symbolic import. Some conservative commentators, legislators, and advocacy groups have repeatedly accused the Obama Administration of overreaching when it comes to addressing climate change, and a victory for the challengers will fuel that criticism. Progressive and liberal commentators, legislators, and advocacy groups have taken the opposite position and argued that the Administration has ample existing authority to tackle one of the biggest public policy challenges of our time. A victory for EPA will be heralded in those circles as a vindication for the broader climate strategy.