Description: Challenge to EPA endangerment finding and rules concerning regulation of greenhouse gas emissions from
stationary and mobile sources.
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Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 01/19/2016 Order List Download Certiorari denied. Supreme Court Declined to Review D.C. Circuit’s Order That Left in Place EPA Regulation of Greenhouse Gas Emissions from “Anyway” Sources. The United States Supreme Court denied certiorari to the Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation, which sought review of the D.C. Circuit’s order governing further proceedings after the Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA. In its April 2015 order, the D.C. Circuit did not vacate EPA’s regulations concerning greenhouse gas permitting for stationary sources in their entirety. Instead, the D.C. Circuit ordered EPA to rescind the portions of the regulations that required permits based solely on a source’s greenhouse gas emissions, but left in place regulations that required sources subject to Prevention of Significant Deterioration (PSD) requirements due to other types of emissions (often referred to as “anyway” sources) to use best available control technology to control greenhouse gas emissions. 11/05/2015 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. Group Asked Supreme Court to Require More EPA Rulemaking Post-UARG v. EPA. The Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation (Group) filed a petition seeking Supreme Court review of the D.C. Circuit’s decision on remand from the Supreme Court’s decision in Utility Air Regulatory Group v. EPA. In April 2015, the D.C. Circuit issued an order governing further proceedings in which it accepted EPA’s view that UARG v. EPA did not require EPA to start from scratch to establish a greenhouse gas permitting regime for stationary sources. The D.C. Circuit said that EPA should rescind its regulations requiring Prevention of Significant Deterioration (PSD) or Title V permits solely based on a source’s greenhouse gas emissions and that the agency should “consider whether any further revisions to its regulations are appropriate in light of UARG v. EPA.” In its petition for a writ of certiorari, the Energy-Intensive Manufacturers Working Group argued that EPA should be required to conduct new rulemaking if it wants to regulate greenhouse emissions from “anyway” sources (i.e., sources that meet PSD and Title V emissions thresholds for other air pollutants) and that the D.C. Circuit should have vacated the existing regulations. -
Utility Air Regulatory Group v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 06/23/2014 Opinion Download Opinion issued. The United States Supreme Court ruled that EPA had impermissibly interpreted the Clean Air Act as compelling or permitting a facility’s potential greenhouse gas emissions to trigger Prevention of Significant Deterioration (PSD) and Title V permitting requirements. The Court upheld, however, EPA’s determination that “anyway” sources (facilities subject to PSD permitting due to their conventional pollutant emissions) could be required to employ “best available control technology” (BACT) for greenhouse gases. The majority opinion, written by Justice Scalia, concluded that subjecting sources to the PSD and Title V programs solely based on their greenhouse gas emissions “would place plainly excessive demands on limited governmental resources” and “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” The Court rejected EPA’s attempt to fix these problems by “rewriting” statutory emissions thresholds, which the Court said “would deal a severe blow to the Constitution’s separation of powers.” The Court went on to hold, however, that the Clean Air Act’s text clearly supported an interpretation that required BACT for “anyway” sources and that applying BACT to greenhouse gases “is not so disastrously unworkable” and “need not result in such a dramatic expansion of agency authority” as to make the interpretation unreasonable. Justice Breyer wrote an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, concurring with the BACT portion of the majority opinion but dissenting from the conclusion that EPA could not interpret the PSD and Title V programs to be triggered solely by a source’s greenhouse gas emissions. Justice Breyer said that a more sensible way to avoid the absurdity of sweeping an unworkable number of sources into the permitting programs was to imply an exception to the numeric statutory thresholds, rather than to imply a greenhouse gas exception to the phrase “any air pollutant.” Justice Alito, in an opinion joined by Justice Thomas, concurred with the ruling on the triggers for the permitting programs, but dissented from the BACT holding. Justice Alito found it “curious” that the Court departed from a literal interpretation of “pollutant” in striking down greenhouse gas triggers for PSD and Title V permitting, but embraced literalism in upholding the application of BACT for “anyway” sources. 02/24/2014 Not Available Download Oral argument held. A sampling of reporting on the oral argument: New York Times, SCOTUSblog, Washington Post, Los Angeles Times, AP. 10/15/2013 Order List Download Certiorari granted. The U.S. Supreme Court granted certiorari with respect to six petitions. The Supreme Court’s grant of certiorari is limited to 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.” Certiorari was denied with respect to other questions raised by petitions challenging the D.C. Circuit’s decision, including issues relating to EPA’s endangerment finding and tailpipe emissions standards. 03/20/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. The Utility Air Regulatory Group filed a petition for writ of certiorari seeking to reverse the D.C. Circuit’s upholding of EPA’s GHG permitting program for large stationary sources. -
Coalition for Responsible Regulation v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 08/07/2015 Order Download Order issued denying rehearing en banc. See below. 08/07/2015 Order Download Order issued denying panel rehearing. D.C. Circuit Rejected Request to Rehear Case on Greenhouse Gas Regulations for Stationary Sources. The D.C. Circuit Court of Appeals issued two orders denying—without comment—a rehearing or rehearing en banc of its judgment remanding but not vacating portions of EPA’s permitting regulations for greenhouse gas emissions from stationary sources. In the petition for rehearing, the petitioners had argued that the D.C. Circuit should have vacated EPA’s regulations requiring sources subject to the Prevention of Significant Deterioration permit program solely due to their emissions of other pollutants to use best available control technology (BACT) to reduce greenhouse gas emissions. 05/26/2015 Petition for Rehearing Download Petition for rehearing and rehearing en banc filed. After the D.C. Circuit determined in April 2015 that the Supreme Court’s decision in Utility Air Regulatory Group v. EPA did not require vacating EPA’s permitting regulations for greenhouse gas emissions from stationary sources, petitioners asked for panel rehearing and rehearing en banc. The petitioners contended that the D.C. Circuit should have vacated EPA’s regulations requiring sources subject to the Prevention of Significant Deterioration permit program solely due to their emissions of other pollutants to use best available control technology (BACT) to reduce greenhouse gas emissions. The petitioners argued that the Supreme Court in UARG v. EPA had held that these BACT provisions were defective because, among other reasons, they did not establish a de minimis level of greenhouse gas emissions below which BACT would not be required. It therefore was inappropriate, the petitioners said, for the D.C. Circuit to allow EPA “merely to ‘consider,’ per its own ruminations, whenever it feels so inclined,” the extent to which UARG v. EPA required revisions to the BACT provisions. The petitioners also contended that the D.C. Circuit’s amended judgment was at odds with its own precedent concerning when remand without vacatur is appropriate. 04/10/2015 Order Download Order issued to govern further proceedings. In an order governing further proceedings after the Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA, the D.C. Circuit accepted EPA’s view that UARG v. EPA did not require EPA to start from scratch to establish a greenhouse gas permitting regime for stationary sources. Instead, the D.C. Circuit ordered EPA to act “as expeditiously as practicable” to rescind Clean Air Act regulations that required Prevention of Significant Deterioration (PSD) and Title V permits solely based on a source’s greenhouse gas emissions. The court also ordered EPA to rescind regulations that would have required EPA to consider lowering the greenhouse gas emissions thresholds for permitting and to “consider whether any further revisions to its regulations are appropriate in light of UARG v. EPA.” On April 30, the EPA Administrator signed a direct final rule that authorized rescission of PSD permits upon requests from applicants who demonstrate that they would not have been subject to PSD permitting but for their greenhouse gas emissions. The regulation is also to be published as a proposed rule in case adverse comments are received. 10/21/2014 Motion Download Motion to govern further proceedings filed by EPA. On October 21, 2014, parties weighed in on how the D.C. Circuit should proceed after the Supreme Court’s decision. Industry groups, along with states and public interest groups aligned with industry, argued that greenhouse gas emissions were not and could not be subject to Prevention of Significant Deterioration (PSD) or Title V requirements without further EPA rulemaking. EPA asked that its PSD and Title V regulations be vacated only to the extent that they required permits where greenhouse gases were the only pollutant that exceeded applicable major source thresholds or required EPA to consider phasing sources into the permitting programs that met lower greenhouse gas emission thresholds. EPA (and also environmental organization respondent-intervenors) said that best available control technology requirements for greenhouse gases should continue to apply—without need for further rulemaking—to sources whose emissions of other pollutants met the applicable thresholds. 10/21/2014 Motion Download Motion to govern further proceedings filed by environmental respondent-intervenors. See above. 10/21/2014 Motion Download Motion to govern further proceedings filed by state, industry, and public interest parties. See above. 12/20/2012 Order Download Order issued denying rehearing. The D.C. Circuit Court of Appeals denied a motion to rehear lawsuits challenging EPA’s greenhouse gas regulations, voting 6-2 against hearing the case en banc, holding that there was no basis for such review. 08/10/2012 Petition for Rehearing Download Petition for rehearing en banc filed by industry groups. 06/26/2012 Opinion Download Opinion issued. The D.C. Circuit dismissed all challenges to EPA’s greenhouse gas regulations. The ruling upheld four aspects of the rules, including the endangerment finding rule, the tailpipe rule, the tailoring rule, and the timing rule. In particular, the court concluded that the endangerment finding and tailpipe rule were neither arbitrary nor capricious; EPA’s interpretation of the governing CAA provisions was unambiguously correct; and no petitioner had standing to challenge the timing and tailoring rules. The court dismissed for lack of jurisdiction all petitions for review of the timing and tailoring rules, and denied the remainder of the petitions. A blog entry analyzing the decision is available here. 12/10/2010 Order Download Order issued denying stay. The D.C. Circuit denied all pending motions to stay EPA's regulations of greenhouse gases, some of which were scheduled to take effect on January 2, 2011. The court also directed that the cases be scheduled for oral argument on the same day before the same panel. 12/23/2009 Petition for Review Petitions for review filed. Seventeen lawsuits in which states and industry groups challenged EPA’s December 2009 finding that greenhouse gas emissions endanger public health and welfare were eventually consolidated with nine lawsuits challenging EPA's denial of requests for reconsideration of the endangerment finding; 17 lawsuits challenging EPA's final rule establishing greenhouse gas emissions standards for cars and light trucks; 26 lawsuits challenging EPA's "tailoring rule," which limited the scope of federal regulation of greenhouse gas emissions at stationary sources; and 18 lawsuits challenging EPA's regulations restricting greenhouse gas emissions from new and modified stationary sources.
The nine lawsuits challenging the denial of reconsideration of the endangerment finding: Coalition for Responsible Regulation v. EPA (D.C. Cir. No. 10-1234), Chamber of Commerce v. EPA (D.C. Cir. No. 10-1235), Southeastern Legal Foundation v. EPA (D.C. Cir. No. 10-1239), Peabody Energy Company v. EPA (D.C. Cir. No. 10-1245), Texas v. EPA (D.C. Cir. No. 10-1281), Pacific Legal Foundation v. EPA (D.C. Cir. No. 10-1310), Competitive Enterprise Institute v. EPA (D.C. Cir. No. 10-1318), Virginia v. EPA (D.C. Cir. No. 10-1319), Utility Air Regulatory Group v. EPA (D.C. Cir. No. 10-1320), and Ohio Coal Association v. EPA (D.C. Cir. No. 10-1321).
The 17 lawsuits challenging the endangerment finding: Coalition for Responsible Regulation v. EPA (D.C. Cir. No. 09-1322), National Mining Association v. EPA (D.C. Cir. No. 10-1024), Peabody Energy Co. v. EPA (D.C. Cir. No. 10-1025), American Farm Bureau Federation v. EPA (D.C. Cir. No. 10-1026), Chamber of Commerce v. EPA (D.C. Cir. No. 10-1030), Southeastern Legal Foundation v. EPA (D.C. Cir. No. 10-1035), Virginia v. EPA (D.C. Cir. No. 10-1036), Gerdau Ameristeel v. EPA (D.C. Cir. No. 10-1037), American Iron and Steel Institute v. EPA (D.C. Cir. No. 10-1038), Alabama v. EPA (D.C. Cir. No. 10-1039), Ohio Coal Association v. EPA (D.C. Cir. No. 10-1040), Texas v. EPA (D.C. Cir. No. 10-1041), Utility Air Regulatory Group v. EPA (D.C. Cir. No. 10-1042), National Association of Manufacturers v. EPA (D.C. Cir. No. 10-1044), Competitive Enterprise Institute v. EPA (D.C. Cir. No. 10-1045), Portland Cement Association v. EPA (D.C. Cir. No. 10-1046), and Alliance for Natural Climate v. EPA (D.C. Cir. No. 10-1049).
The 17 lawsuits challenging the vehicle emission standards: Coalition for Responsible Regulation v. EPA (D.C. Cir. No. 10-1092), Southeastern Legal Foundation v. EPA (D.C. Cir. No. 10-1094), American Iron and Steel Institute v. EPA (D.C. Cir. No. 10-1134), Competitive Enterprise Institute v. EPA (D.C. Cir. No. 10-1143), Ohio Coal Association v. EPA (D.C. Cir. No. 10-1144), Levin v. EPA (D.C. Cir. No. 10-1152), Gerdau Ameristeel U.S. Inc. v. EPA (D.C. Cir. No. 10-1156), Energy Intensive Manufacturers Working Group v. EPA (D.C. Cir. No. 10-1158), Portland Cement Association v. EPA (D.C. Cir. No. 10-1159), U.S. Chamber of Commerce v. EPA (D.C. Cir. No. 10-1160), Utility Air Regulatory Group v. EPA (D.C. Cir. No. 10-1161), National Mining Association v. EPA, (D.C. Cir. No. 10-1162), Peabody Energy Co. v. EPA (D.C. Cir. No. 10-1163), American Farm Bureau Association v. EPA (D.C. Cir. No. 10-1164), National Association of Manufacturers v. EPA (D.C. Cir. No. 10-1166), American Forest and Paper Association v. EPA (D.C. Cir. No. 10-1172), and Texas v. EPA (D.C. Cir. No. 10-1182).
The 26 lawsuits challenging the tailoring rule: Georgia Coalition for Sound Environmental Policy v. EPA (D.C. Cir. No. 10-1200), National Mining Association v. EPA (D.C. Cir. No. 10-1201), American Farm Bureau Fed. v. EPA (D.C. Cir. No. 10-1202), Peabody Energy Company v. EPA (D.C. Cir. No. 10-1203), Center for Biological Diversity v. EPA (D.C. Cir. No. 10-1205), Energy Intensive Manufacturers v. EPA (D.C. Cir. No. 10-1206), South Carolina Public Service v. EPA (D.C. Cir. No. 10-1207), Levin v. EPA (D.C. Cir. No. 10-1208), National Alliance of Forest Owners v. EPA (D.C. Cir. No. 10-1209), National Environmental Developers v. EPA (D.C. Cir. No. 10-1210), Alabama v. EPA (D.C. Cir. No. 10-1211), Utility Air Regulatory Group v. EPA (D.C. Cir. No. 10-1212), Missouri Joint Municipal Electrical Utility Commission v. EPA (D.C. Cir. No. 10-1213), Sierra Club v. EPA (D.C. Cir. No. 10-1215), Clean Air Implementation Project v. EPA (D.C. Cir. No. 10-1216), National Association of Manufacturers v. EPA (D.C. Cir. No. 10-1218), National Federation of Independent Businesses v. EPA (D.C. Cir. No. 10-1219), Portland Cement Association v. EPA (D.C. Cir. No. 10-1220), Louisiana Department of Environmental Quality v. EPA (D.C. Cir. No. 10-1221), Perry v. EPA (D.C. Cir. No. 10-1222), Southeastern Legal Foundation v. EPA (D.C. Cir. No. 10-1131), Coalition for Responsible Regulation v. EPA (D.C. Cir. No. 10-1132), American Iron and Steel Institute v. EPA (D.C. Cir. No. 10-1147), Gerdau Ameristeel U.S. Inc. v. EPA (D.C. Cir. No. 10-1148), Ohio Coal Association v. EPA (D.C. Cir. No. 10-1145), and Chamber of Commerce v. EPA (D.C. Cir. No. 10-1199).
The 18 lawsuits challenging the rule for new and modified stationary sources: Coalition for Responsible Regulation v. EPA (D.C. Cir. No. 10-1073), Southeastern Legal Foundation v. EPA (D.C. Cir. No. 10-1083), Clean Air Implementation Project v. EPA (D.C. Cir. No. 10-1099), American Iron and Steel Institute v. EPA (D.C. Cir. No. 10-1109), Gerdau Ameristeel U.S. Inc. v. EPA (D.C. Cir. No. 10-1110), Energy Intensive Manufacturers v. EPA (D.C. Cir. No. 10-1114), Center for Biological Diversity v. EPA (D.C. Cir. No. 10-1115), Peabody Energy Company v. EPA (D.C. Cir. No. 10-1118), American Farm Bureau Federation v. EPA (D.C. Cir. No. 10-1119), National Mining Association v. EPA (D.C. Cir. No. 10-1120), Utility Air Regulatory Group v. EPA (D.C. Cir. No. 10-1122), Chamber of Commerce v. EPA (D.C. Cir. No. 10-1123), Missouri Joint Municipal Electrical Utility Commission v. EPA (D.C. Cir. No. 10-1124), National Environmental Developers v. EPA (D.C. Cir. No. 10-1125), Ohio Coal Association v. EPA (D.C. Cir. No. 10-1126), National Association of Manufacturers v. EPA (D.C. Cir. No. 10-1127), Texas v. EPA (D.C. Cir. No. 10-1128), and Portland Cement Association v. EPA (D.C. Cir. No. 10-1129). -
Texas v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/15/2013 Order List Certiorari granted. 04/19/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. The petition for writ of certiorari submitted by Texas and other sources cited the regulatory burden imposed on state regulators and sought review of EPA’s GHG permitting program for large stationary sources.
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U.S. Chamber of Commerce v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/15/2013 Order List Certiorari granted. 04/19/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. The U.S. Chamber of Commerce, the American Farm Bureau Federation, and Alaska filed a petition for writ of certiorari seeking to reverse the D.C. Circuit’s upholding of EPA’s 2009 endangerment finding, which serves as the basis for EPA’s regulation of GHG emissions under the Clean Air Act, and EPA’s GHG permitting program for large stationary sources. More broadly, the petition seeks review of the question of whether EPA, having identified “absurd” consequences posed by regulation of GHG under the Clean Air Act, may deem the absurdity “irrelevant” to construction of some statutory provisions and a “justification for rewriting others.” -
Coalition for Responsible Regulation, Inc. v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/15/2013 Order List Certiorari denied. 04/19/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. A coalition that included the Coalition for Responsible Regulation, Alpha Natural Resources, Inc. and the National Cattlemen’s Beef Association raised the broad question of whether the Clean Air Act and Massachusetts v. EPA prohibit EPA from considering whether regulations addressing GHG emissions under Section 202 of the Clean Air Act “would meaningfully mitigate the risks identified as the basis for their adoption.” -
Southeastern Legal Foundation, Inc. v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/15/2013 Order List Certiorari granted. 04/19/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. A coalition that included members of Congress, a number of businesses and various policy and advocacy groups filed a petition for a writ of certiorari that presented several questions challenging EPA’s authority to regulate greenhouse emissions under the Clean Air Act in general and its tailoring rule, in particular. -
Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/15/2013 Order List Certiorari granted. 04/19/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. The petition filed by the Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation raised the question of whether EPA was statutorily required to regulate GHG emissions under the Clean Air Act’s Prevention of Significant Deterioration (PSD) and Title V programs, as well as related questions in connection with EPA’s obligation to consider alternative regulatory programs for GHG emissions from stationary sources and with the timeliness of challenges to the application of the PSD program to GHG emissions. -
American Chemistry Council v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/15/2013 Order List Certiorari granted. 04/18/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. A group of industry-affiliated organizations soughtreview of EPA’s GHG permitting program for large stationary sources.
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Pacific Legal Foundation v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/15/2013 Order List Certiorari denied. 03/20/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. The petition for writ of certiorari filed by Pacific Legal Foundation sought reversal of the D.C. Circuit’s upholding of EPA’s 2009 endangerment finding. -
Virginia v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 10/15/2013 Order List Certiorari denied. 03/20/2013 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. The petition for writ of certiorari filed by the State of Virginia sought reversal of the D.C. Circuit’s upholding of EPA’s 2009 endangerment finding.