• Document: CLIMATE REGULATION UNDER THE CLEAN AIR ACT IN THE WAKE OF UTILITY AIR REGULATORY GROUP V. EPA
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\\jciprod01\productn\H\HLE\39-1\HLE101.txt unknown Seq: 1 24-MAR-15 11:17 CLIMATE REGULATION UNDER THE CLEAN AIR ACT IN THE WAKE OF UTILITY AIR REGULATORY GROUP V. EPA William W. Buzbee Ann E. Carlson and Megan M. Herzog Jody Freeman Richard J. Lazarus Thomas O. McGarity Craig N. Oren Richard L. Revesz In Utility Air Regulatory Group v. EPA, the Supreme Court largely upheld the U.S. Environmental Protection Agency’s regulation of greenhouse gases under the Clean Air Act’s Prevention of Significant Deterioration program for new or modified major statio- nary sources of air pollution. Although the Court rejected the Environmental Protection Agency’s claim that it was statutorily compelled to consider a source’s greenhouse gas emissions as triggering the Prevention of Significant Deterioration program’s permit- ting requirements, it held that sources already subject to the program based on their emissions of other pollutants could then be required to apply Prevention of Significant Deterioration pollution-control technology to their greenhouse gas emissions as well. In this Symposium, eight authors explore the Court’s decision and consider its implications for the Environmental Protection Agency’s authority to regulate greenhouse gases under the Clean Air Act. INTRODUCTION Cecilia Segal* On April 2, 2007, the U.S. Supreme Court issued a momentous decision in the field of environmental law: Massachusetts v. EPA.1 The Court, in an opinion authored by Justice Stevens, held that the U.S. Environmental Protection Agency (“EPA”) has authority to regulate greenhouse gas emissions from new motor vehicles under section 202(a)(1) of the Clean Air Act (“CAA”).2 This authority stems from the fact that greenhouse gases “fit well within the Act’s capacious definition of ‘air pollutant,’” 3 a definition that “embraces all airborne compounds of whatever stripe.”4 The Court’s holding was bolstered by sweep- ing language regarding the “well-documented rise in global temperatures,”5 the “serious and well recognized” harms associated with climate change,6 and the * Managing Editor, Harvard Environmental Law Review, 2014–2015. J.D., Harvard Law School, 2015. The author would like to thank Professor Freeman and Professor Lazarus for their guidance, the Symposium editing team for their incredibly hard work, and her husband, Jake, for his unend- ing support. 1 549 U.S. 497 (2007). 2 Id. at 532. 3 Id. 4 Id. at 529. 5 Id. at 504. 6 Id. at 521. \\jciprod01\productn\H\HLE\39-1\HLE101.txt unknown Seq: 2 24-MAR-15 11:17 2 Harvard Environmental Law Review [Vol. 39 fact that a “reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.”7 Massachusetts thus paved the way for EPA to address climate change us- ing its authority under the CAA. However, EPA had not yet made an endanger- ment finding concerning the effect of greenhouse gases on public health and welfare. An endangerment finding refers to a judgment by the EPA Administra- tor that a particular air pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare,”8 and is a necessary predicate to regulating emissions from motor vehicles under section 202(a)(1) of the CAA.9 Indeed, EPA’s refusal to make such a finding spawned the litigation in Massachusetts.10 Though Massachusetts stated that EPA could refrain from making such a finding, EPA could do so only if it provided a reasoned explanation for its actions.11 If EPA did issue an endanger- ment finding for greenhouse gases, the Court held that EPA would then be authorized—and required—to regulate greenhouse gas emissions from new motor vehicles.12 EPA ultimately published an endangerment finding for greenhouse gases on December 15, 2009.13 Accordingly, EPA determined that greenhouse gases, defined as an aggregate group of six key gases, “may reasonably be anticipated both to endanger public health and to endanger public welfare.”14 Based on that finding, EPA then issued a rule promulgating emissions standards for motor vehicles, known as the “Tailpipe Rule.”15 In EPA’s view, the Tailpipe Rule in turn set off a chain reaction under the CAA. Under the CAA’s Prevention of Significant Deterioration (“PSD”) pro- gram, major stationary sources in certain areas that emit, or have the potential to emit,

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