On June 23, 2014, the United States Supreme Court decided by a 5:4 decision to invalidate EPA’s greenhouse gas rules applicable to the federal Clean Air ActHands take care of small plant PSD (Prevention of Significant Deterioration) program and Title V permitting regime. The court also invalidated EPA’s associated Tailoring Rule. At the same time, the Supreme Court upheld by a 7:2 margin EPA’s authority to require BACT analysis for greenhouse gases for “anyway” sources that already trigger PSD review or Title V on the basis of conventional pollutants.
Analysis
The Supreme Court considered EPA’s interpretation of the Clean Air Act which typically requires industrial sources of air emissions to obtain a federal PSD permit if the facility has greater than 250 tons per year of emissions and to obtain a Title V permit if its potential emissions are over 100 tons. EPA had extended these programs to greenhouse gases (carbon dioxide, methane, etc.) but attempted to raise the 250/100 ton “trigger thresholds” to 100,000 tons per year in light of the large amounts of greenhouse gas emitted by industrial sources.
The Supreme Court ruled that EPA has no authority to change specific numerical limits chosen by Congress and should have interpreted the PSD and Title V programs to exclude greenhouse gases as triggering emissions. However, the court also ruled that large industrial facilities that already triggered PSD because of high emissions of conventional pollutants — such as combustion emissions (NOx) or solvents — could be subject to greenhouse gas rules and could be required to conduct a BACT analysis to determine if greenhouse gas emission controls are feasible.
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