United States: Supreme Court Rejects EPA’s Expansive Regulation Of Greenhouse Gas Emissions, Affirms Regulation Of Existing Permitted Sources

In Utility Air Regulatory Group v. EPA, 573 U.S. __, 2014 WL 2807314 (June 23, 2014), the Supreme Court affirmed the power of the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from major emitting facilities, such as large factories and power plants, which already emit other pollutants and operate under a Clean Air Act (CAA) permit. These already-permitted or "anyway" sources account for roughly 83% of all stationary-source greenhouse gas emissions in the United States. But the Court rejected the EPA's expansion of its regulatory power beyond the "anyway" sources to millions of smaller stationary sources, including schools, churches, office and apartment buildings, and retail stores, which account for only 3% of emissions.

As a practical matter, the Court's opinion confirms the EPA's power to combat global warming by forcing large industrial sources and manufacturers of new motor vehicles—which account for the vast majority of all greenhouse gas emissions in the United States—to develop and implement technology to curb such emissions. As Justice Scalia, who authored the majority opinion, remarked from the bench when announcing the Court's decision: "EPA is getting almost everything it wanted in this case."

A. BackgroundThe EPA regulates greenhouse gas emissions for all stationary sources and industry groups object.

Utility Air Regulatory Group and the consolidated cases presented an industry challenge to the EPA's regulation of greenhouse gas emissions from all stationary sources that exceeded the statutory emissions threshold established by the CAA. The regulations were enacted under the Obama Administration in 2011, following the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which established that greenhouse gases were "air pollutants" that could be regulated under the CAA if they endanger public health and welfare. Prior to that decision, the EPA under the Bush Administration had refused to regulate greenhouse gases.

In 2009, the EPA made an "endangerment finding" based on the global warming effect of greenhouse gases, which obligated the agency to regulate emissions from new motor vehicles. Following a longstanding agency interpretation of the CAA that read the term "air pollutant" consistently across all provisions of the Act, the EPA treated its regulation of mobile-source emissions as a "trigger" for regulating the identical greenhouse gas pollutants from stationary sources governed by Title V and the Act's Prevention of Significant Deterioration (PSD) provisions. Industry groups appealed and the Court agreed to review the EPA's "triggering rule."

B. The Court rejects the EPA's "triggering rule," but affirms its authority to implement greenhouse gas controls for "anyway" sources.

Writing for a 5-4 majority of the Court, Justice Scalia rejected the EPA's "triggering rule," reasoning that while the CAA's "act wide" definition of "any air pollutant" includes greenhouse gases as announced in Massachusetts, the definition of "air pollutant" in the stationary-source provisions of the Act must be given a "narrower, context-appropriate meaning." Rather than making the usual assumption that identical words in different parts of a statute are intended to have the same meaning, the Court relied on the "fundamental canon of statutory construction that words in a statute must be read in their context and with a view to their place in the overall statutory scheme." Under this principle, the Court determined that reading "any pollutant" to include greenhouse gases in the CAA's stationary-source provisions would produce absurd results. For example, the EPA's permitting program would expand from roughly 82,000 stationary sources to over six million sources; the costs of administering the program would balloon from $62 million to over $21 billion; and the EPA would be given an "unheralded power" to regulate a significant portion of the American economy—results that Congress could not have intended when it enacted the CAA.

Rejecting the position of the EPA and the four dissenting justices, the Court also held that EPA could not save its "unreasonable" interpretation of the CAA by tailoring implementation of the greenhouse gas regulation to apply to major emitters first and then gradually expanding it to smaller sources. As the EPA conceded, all six million soon-to-be-regulated small stationary sources exceeded the emission thresholds established by the CAA itself. Accordingly, the Court reasoned, the "tailoring rule" amounted to "rewriting the statutory thresholds" for air pollution, something that executive-branch agencies have no power to do. As the Court put it, allowing agencies to "tailor" unambiguous legislation to meet "bureaucratic policy goals" would "deal a severe blow to the Constitution's separation of powers."

Though the Court rejected EPA's "triggering rule," the Court agreed that EPA had the statutory authority to regulate greenhouse gases under the "best available control technology" (BACT) provisions applicable to "anyway" sources (major emitters that already operate under a CAA permit). Deferring to the EPA's reasonable construction of the BACT provisions, the Court acknowledged that the EPA also could require major emitters of other air pollutants to implement controls for greenhouse gases as well. As noted, these major sources account for 83% of all stationary greenhouse gas emissions.

Utility Air Regulatory Group affirms the EPA's immediate power under the BACT provisions to regulate the most significant emitters of greenhouse gas pollution, although it acknowledges that these large emitters amount to a "relative handful" of all pollution sources. Beyond the immediate effects of this decision, which the Court found to be both dictated by the CAA's language and not "disastrously unworkable," the opinion reaffirms the Roberts Court's close scrutiny of EPA and other agency decisions that either attempt to find new executive agency powers under long-extant statutes or may have significant economic impacts.

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.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.