How Will the EPA React to Massachusetts v. Environmental Protection Agency?
Submitted by Benjamin A. Escobar, Beirne, Maynard, & Parson L.L.P.

On April 2, 2007, the U.S. Supreme Court, in Massachusetts v. Environmental Protection Agency, ruled that the EPA has the authority to regulate greenhouse gases.  The decision, in part, was based on finding that greenhouse gases (“GHG”) are pollutants under the Clean Air Act.

This ruling has not meant that regulation of GHG is imminent.  The most current indication of the EPA’s position concerning regulation of GHG relates to expansion of the Bonanza Power Plant (located in Uintah County, Utah).  Before issuing the final permit, the EPA allowed public comment, and responses from environmental groups predictably advocated regulation of GHG emissions.  Notwithstanding these comments, on August 30, 2007, the EPA issued the permit, which does not regulate emissions of GHG. 

In connection with the permit, the EPA also published its Response to Public Comment on Draft Air Pollution Control Prevention of Significant Deterioration Permit to Construct.  The response sets forth the EPA’s reasons for refusing to regulate GHG in light of the Massachusetts decision.  Specifically, the EPA stated that it “does not currently have the authority to address the challenge of global climate change by imposing limitations of CO2 and other greenhouse gases in PSD permits.”  In arriving at this position, the EPA noted it has historically only regulated substances that are specifically subject to regulation under statutory or regulatory provisions.  Since the EPA has no regulations in effect to control emissions of GHG, it reasoned that it did not have a basis to impose limits on emissions of GHG in the permit.  It further justified its inaction by noting that the Massachusetts decision concluded only that GHG are pollutants that the EPA may regulate.  Finally, the EPA also noted that regulation of GHG is best handled “through notice and comment rulemaking, allowing for a process which is public and transparent and based on the best available science.” 

The permitting process related to the Bonanza Power Plant clearly indicates that the EPA, at least under the current administration, is not going to take any expeditious actions to control emission of GHG.  Rather, it appears that it will use the administrative process to address the need and practicality of regulating GHG from mobile and stationary sources, possibly leading to litigation as environmental groups seek to force action on this issue.