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Supreme Court Amicus Brief on EPA’s PSD Permitting Case

Policy Integrity filed an amicus brief with the U.S. Supreme Court supporting the authority of the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from stationary sources under the prevention of significant deterioration (PSD) program.

The D.C. Circuit Court of Appeals upheld the EPA’s ability to regulate greenhouse gases under PSD, which applies to large, stationary sources of air pollutants, such as electric power plants, factories, and oil refineries, that are new or undergoing modifications in relatively unpolluted areas.

The industry and state petitioners who challenged the D.C. Circuit Court decision argue that PSD requirements should be triggered only by pollutants with National Ambient Air Quality Standards (NAAQS) or with primarily local air quality impacts. We find this argument untenable. For more than 30 years and through rulemakings under five different presidential administrations, EPA has consistently interpreted PSD permitting to apply to all pollutants regulated under the Clean Air Act, including non-NAAQS pollutants and those with global impacts.

Congress also weighed in when it selectively amended the Clean Air Act in 1990 to exclude only Section 112 hazardous air pollutants—but not other non-NAAQS or non-local pollutants—from PSD review. This targeted amendment supports Congress’s agreement with EPA that non-NAAQS and non-local pollutants covered under the Act do in fact trigger requirements for PSD permitting.

The PSD program works in concert with other provisions of the Clean Air Act to strike a careful balance between the regulation of existing sources and the regulation of new or modified sources. Industry’s interpretations of the PSD requirements would create inconsistencies with other programs under the Clean Air Act, like the New Source Performance Standards, and could increase the amount of pollution stemming unchecked from older, dirtier, so-called “grandfathered” sources.

Policy Integrity Director Richard Revesz, along with other experts, earlier discussed the Supreme Court’s decision to review only the narrow PSD issue in the D.C. Circuit Court decision covering the broader greenhouse gas regulation scheme. The panel, brought together by the Frank J. Guarini Center on Environmental and Land Use Law, examined the implications of the decision and discussed the real-world consequences for greenhouse gas controls. In leaving EPA’s endangerment finding in place, the Supreme Court affirmed the EPA’s authority and obligation to proceed with its program for controlling greenhouse gases under the Clean Air Act.