Environmental Regulation

Supreme Court to Hear CO2 Case

By Cathy Cash | ECT Staff Writer Published: October 17th, 2013

Utilities challenging the Environmental Protection Agency’s regulation of greenhouse gas emissions from power plants will have their day in court—the Supreme Court.

The U.S. Supreme Court will hear utilities’ case against EPA regulation of greenhouse gases from power plants. (Photo By: iStockphoto)

The U.S. Supreme Court will hear utilities’ case against EPA regulation of greenhouse gases from power plants. (Photo By: iStockphoto)

The justices agreed Oct. 15 to hear the utility sector’s case against EPA regulating carbon dioxide emissions from fossil-based power plants through permitting and “new source review” provisions under the Clean Air Act.

“In our view, regulating greenhouse gas emissions under Clean Air Act provisions meant to address local or regional problems from traditional air pollutants is out of sync with the law,” said Rae Cronmiller, NRECA environmental counsel. “We welcome Supreme Court review.”

Oral arguments before the court in Utility Air Regulatory Group v. EPA could be slated in February or March.

The case will focus on whether EPA’s regulation of greenhouse gases from new vehicles under “mobile source” provisions of the Clean Air Act triggers regulation of these emissions from power plants under the law’s “stationary source” provisions.

The case comes as EPA prepares to draft carbon dioxide limits for existing fossil generation in June 2014 and finalize them in June 2015 under another provision meant to establish “new source performance standards.” The agency plans to enforce carbon dioxide standards on new coal and natural gas-based power plants next year.

EPA got the go-ahead to tackle greenhouse gases, including carbon dioxide, in 2007 when the Supreme Court ruled in Massachusetts v. EPA that these emissions are pollutants the agency can regulate under the Clean Air Act.

The agency developed greenhouse gas standards for motor vehicles and then moved to regulate coal-based power plants by setting carbon dioxide emission thresholds and requirements for construction and operating permits.

That attracted an onslaught of litigation from industry and others, including the Utility Air Regulatory Group, the American Chemical Council, the state of Texas, the Southeastern Legal Foundation, and the U.S. Chamber of Commerce. The Supreme Court consolidated these cases in its order to hear the case.

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