POLITICS: PennAve

Supreme Court limits EPA on some greenhouse gas emissions rules

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The Environmental Protection Agency's ability to limit greenhouse gases from power plants was largely upheld in a Supreme Court ruling Monday that also curtailed some of the agency's regulatory reach.

The 5-4 ruling kept intact the EPA's option to require large polluters to use the best technology available to curb greenhouse gases. That's key because it's the cornerstone of the agency's proposed power plant emissions rules from new and existing facilities.

"EPA reasonably interpreted the act to require sources that would need permits based on their emission of conventional pollutants to comply with [best available control technology] for greenhouse gases," the decision said.

But the decision was also a win for business groups that brought the suit against the EPA.

The ruling restrains some of the EPA's industrial sector regulations that sought to require companies to obtain a permit before building or modifying existing industrial facilities that would have the effect of increasing pollution. Those regulations largely affected power plants, oil refineries and energy-intensive manufacturers such as those in the steel and fertilizer industries.

The court said the EPA cannot require pre-construction permits just because a source would emit greenhouse gases; however, those sources would need to use the best technology to limit greenhouse gas emissions when applying for a permit for other so-called "conventional" pollutants.

Right now, that would affect "more than a handful" of facilities, Roger Martella, a partner in the environmental practice at Sidley Austin LLP, said in a media call hosted by the American Chemistry Council. Leslie Hulse, the council's assistant general counsel, said the permitting program "would have captured quite a bit" of facilities in the future as manufacturing rebounds in the United States.

The court also said the EPA cannot rewrite its statutory thresholds after the fact, as it is had done with the two permitting programs in question.

"Today’s decision will help to ensure that permitting requirements fall within the authority granted by Congress,” Harry Ng, the vice president and general counsel with the American Petroleum Institute.

“It is a stark reminder that the EPA’s power is not unlimited."

The EPA said the ruling would dent some of its regulatory program, but leave most of it untouched. The agency said the decision would still allow it to address 83 percent of carbon emissions from stationary sources through the permitting process, down from 86 percent.

The agency said the ruling served to uphold its major power plant rules — the one for existing power plants released earlier this month, the agency's most aggressive measure to tackle climate change, calls for curbing power sector emissions 30 percent below 2005 levels by 2030.

"The Supreme Court’s decision is a win for our efforts to reduce carbon pollution because it allows EPA, states and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources," EPA spokeswoman Liz Purchia said.

The decision also is poised to spark renewed debate of the politically charged topic ahead of the November mid-term elections.

Sen. Roy Blunt, R-Mo., who signed an amicus brief asking the Supreme Court to remand a lower court decision that upheld the EPA's authority to require permits for greenhouse gases, said the high court’s decision was a “step in the right direction.”

“I'll keep fighting to protect Missourians from the Obama administration's job-destroying energy policies, which are especially harmful for the families who are struggling to make ends meet,” he said.

• Sean Lengell contributed to this report, which has been updated.

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