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
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Several ongoing US Environmental Protection Agency (EPA) rulemakings and a piece of federal legislation would, if promulgated or enacted, impose significant new regulatory requirements on the power plant industry.
Among the various Clean Air Act programs, it has been suggested that the New Source Performance Standards program provides the best vehicle for a manageable and effective reduction in greenhouse gas emissions.