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Supreme Court Strikes Down GHG PSD and Title V Authority

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

 

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