Counsel for industry and state petitioners seeking to overturn Environmental Protection Agency permitting requirements for stationary sources that emit greenhouse gases faced heavy questioning before the U.S. Supreme Court Feb. 24 as to the meaning of the phrase “any air pollutant” for purposes of Clean Air Act regulation (Util. Air Regulatory Grp. v. EPA, U.S., No. 12-1146, oral arguments heard 2/24/14).
EPA has interpreted the phrase to mean any regulated pollutant under the act in finding that the regulation of greenhouse gases for vehicles necessarily triggered stationary source permitting requirements.
Noting various interpretations advanced on the issue by petitioners, Justice Elena Kagan asked Peter Keisler, counsel for industry petitioners, to explain the interpretation of the phrase for which he was arguing. Kagan noted three interpretations from petitioners and that Circuit Judge Brett Kavanaugh gave one other interpretation in the underlying case before the U.S. District Court for the District of Columbia Circuit.
In response, Keisler sought to set forth the industry petitioners' main arguments and stated that while other provisions of the Clean Air Act give the EPA authority to regulate greenhouse gases from stationary sources, the prevention of significant deterioration provision does not because “the PSD program is exclusively focused on emissions that have area-specific air quality impacts, and not on globally undifferentiated phenomena.”
Following up on Keisler's statements, Justice Ruth Bader Ginsburg asked about the endangerment finding, which refers to greenhouse gases having severe effects at the local level. Keisler responded that the industry petitioners' point is that it is not the kind of measurable area-specific impact.
Agreeing with Keisler, Justice Antonin Scalia said it is “certainly not measurable.”
'Conundrum' Over Statutory Violation
Kagan said the “conundrum” that this case raises is that everyone is violating a statutory term. Kagan commented that the EPA says it can't regulate greenhouse gases at the statute's set threshold amounts and that industry petitioners would be violating the “any air pollutant” phrase as “no one” would naturally read the phrase to mean any air pollutant if they have localized effects, but not otherwise.
Counsel for the state petitioners, Jonathan F. Mitchell, Solicitor General of Texas, also faced questioning from Kagan as to the correct interpretation of the phrase “any air pollutant.” Mitchell, however, disagreed with the proposition that the EPA's interpretation of the phrase is set and said instead that the EPA has used other interpretations.
Agency Deference Questioned
In response to questioning from Justice Sonia Sotomayor as to what the court should do, Mitchell said he was asking the court to hold that greenhouse gases included in the interpretation of air pollutant does not fit with unambiguous provisions of the PSD and Title V programs.
With respect to EPA's determination that only the largest stationary sources would initially be subject to greenhouse gas permitting, Justice Stephen G. Breyer questioned Mitchell about why the case didn't present a permissible example of an agency reading an exception into the statute.
Breyer laid out the choices for the act's permitting requirements. One interpretation would be any regulated air pollutant but not greenhouse gases. Another would be any air pollutant, including greenhouse gases, with EPA having the authority to exempt small emitters. He asked which does “less violence” to the statute.
Mitchell chose the first interpretation, saying the term “air pollutant” is flexible and can be interpreted to avoid “absurdity.”
Saying the issue in the case was at the “apex” of deference, and that there's nothing that gets more deference than the agency's interpretation of such a complicated statute, Kagan asked why this wasn't a classic case for deference.
Mitchell responded by drawing an analogy to the situation in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), a case in which the state petitioner's brief said the court refused to give deference to an FDA interpretation regarding jurisdiction over tobacco products because the results would not have been compatible with rational regulation.
EPA's Position Questioned
Addressing Solicitor General Donald B. Verrilli Jr.'s arguments in support of the EPA, Justice Antonin Scalia asked why it would be unreasonable to give EPA authority to regulate mobile sources and not stationary sources given the licensing for stationary sources and the other problems it produces, saying that doesn't seem irrational at all to him.
In responding, Verrilli turned to the language of the Clean Air Act and the interrelation of the provisions at issue in the case.
Chief Justice John G. Roberts Jr. asked what best available control technology looked like with respect to greenhouse gases, following up that the issue deals with regulation of energy usage as opposed to particulate emissions such as the national air ambient quality standard provisions.
Verrilli responded that it's an “evolving” process with 140 or so permits that have been issued.
Roberts and Breyer asked what is gained by the EPA prevailing on its argument. They said if the EPA can regulate greenhouse gases with respect to sources that are already subject to permitting, that would get to 83 percent of greenhouse gas emissions. EPA prevailing on its argument that regulation of greenhouse gases for mobile sources triggered regulatory requirements for stationary sources would mean only an additional 3 percent, or 86 percent of such emissions, according to Roberts.
Scalia said he didn't have the expansive notion of reading an exception into the statute as Breyer and said an alternative choice to the EPA's approach was adopting a permissible interpretation of the statute that doesn't lead to the “absurdity.”
Roberts questioned whether allowing the EPA to change the thresholds for permitting in the present case could result in the EPA's assertion of authority to change thresholds with respect to other pollutants regulated in the future.
Justices Anthony Alito Jr. and Breyer also seemed concerned with whether the EPA intended to regulate greenhouse gas emissions at the statutory thresholds at some time in the future, which would expand the number of entities subject to regulation, rather than keeping with the exemption for small emitters the agency has currently established for greenhouse gases permitting.