Today (06/23/14), the U.S. Supreme Court issued a 5-4 ruling that eliminates EPA’s authority to require PSD and Title V permits based on GHG emissions.
Some key findings of the Court:
- The Clean Air Act does not compel EPA to interpret the definition of “air pollutant” such that GHGs must be subject to the PSD and Title V permitting programs. This is a reversal of the Court of Appeals decision.
- EPA lacked authority to “tailor” the PSD and Title V major source thresholds for GHGs.
- EPA reasonably interpreted the Clean Air Act to require GHG BACT for “anyway sources” – those facilities that triggered PSD for conventional criteria pollutants (e.g., NOx).
- EPA may establish a de minimis level below which BACT is not required for GHGs – again, only for “anyway sources”. And, the existing threshold for modified sources (75,000 tons/yr CO2e) was not established as a de minimis level for BACT but could be set as a de minimis level with EPA justification.
The ruling does not appear to impact other GHG regulatory efforts, including the recently-proposed performance standards for power plants and mobile source emissions standards.
Some questions arise:
- How will EPA and state agencies react to the ruling? When will regulations (40 CFR 52.21) be amended?
- Can state agencies waive GHG PSD and Title V permitting immediately? Or, do the regulations (SIPs) need to be amended first?
- When will EPA issue a GHG de minimis level for “anyway sources”? Will they propose to keep the 75,000 ton/yr CO2e threshold?
The decision is available here: http://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf