In Massachusetts v. EPA, 547 U.S. 497 (2007), the
Supreme Court ruled that greenhouse gases ("GHG") were
"pollutants" under the Clean Air Act
("CAA"). The Court directed the Environmental
Protection Agency ("EPA") to decide whether GHG emissions
could "reasonably be anticipated to endanger public health and
welfare" so as to trigger an obligation under the CAA to set
motor vehicle emission standards for them.
In response, the EPA (1) found that such
"endangerment" exists; (2) set motor vehicle emissions
standards for GHGs; (3) reaffirmed its long-standing position that
when a pollutant becomes regulated under the CAA, new and modified
sources of that pollutant must get a "new source review"
("NSR") permit before construction starts; and (4)
dramatically raised by regulation the statutorily mandated emission
thresholds at which NSR applies, arguing that without this
adjustment NSR permitting for GHGs would produce a vast workload
increase that would be unrealistically expensive and
On June 26, 2012, in the case of Coalition for Responsible
Regulation v. EPA, the U.S. Court of Appeals for the D.C.
Circuit, which hears most CAA cases, upheld the EPA in all
respects. The court found that (1) the EPA's
"endangerment" finding was fully supported by the record;
(2) the motor vehicle emissions standards were within the EPA's
authority; (3) the EPA's legal position on NSR applicability
was "unambiguously correct," rejecting several
alternative interpretations put forward by industry; and (4) no
litigants had standing to challenge the EPA's upward adjustment
of the NSR thresholds, since this adjustment did not harm any of
The importance of this decision lies in its complete and
strongly worded endorsement of the EPA's approach to this very
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the meaning of a "source" under section 111(d) of the Clean Air Act.
On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that pollutant.
EPA recently proposed a pair of rules under the Significant New Alternatives Policy program to substitute hydrofluorocarbon refrigerants that possess high global warming potential with low-GWP alternatives.