US Supreme Court Briefing Of Greenhouse Gas Cases Underway — Oral Argument Scheduled For February 24, 2014

Briefing before the US Supreme Court is currently underway in a matter involving challenges to the suite of greenhouse gas (GHG) cases decided by the US Court of Appeals for the District of Columbia Circuit in June 2012. In October 2013, the Supreme Court granted six petitions for writ of certiorari filed by industry and state petitioners on the following single issue:

Whether EPA [(the US Environmental Protection Agency)] permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

The Supreme Court did not grant review of other issues, such as whether the EPA properly found that GHG emissions from motor vehicles may reasonably be anticipated to endanger public health or welfare. Links to each of the briefs filed in the case before the Supreme Court are provided below. With respect to the permitting issue on which review was granted, the scope of the grant of certiorari includes the so-called "situs" issue briefed before the DC Circuit. The situs issue involves the question of whether the limiting language in Section 165 of the Clean Air Act cabins the scope of the pollutants that can trigger Prevention of Significant Deterioration (PSD) permitting requirements to those for which the EPA has established a national ambient air quality standard (NAAQS) and for which the area in question is designated attainment with that standard as well as the argument that PSD pollutants are limited to those with local effects. For a more thorough explanation of the situs issue, the article, "EPA's Missed Opportunity to Ground Its Tailoring Rule in the Statute: What the Situs Argument Would Mean for the Future of the PSD Program," provides an understandable summary, which may be easier to digest than reviewing the DC Circuit's decision. The article, written by Katten attorneys Chuck Knauss and Shannon S. Broome, provides helpful insights into what a victory on that theory would mean for the scope of the PSD program. In addition, the grant includes the question of whether GHGs can be considered "PSD pollutants" at all given the purpose and structure of the PSD provisions.

Upcoming Deadlines

The reply briefs of petitioners in the case are due by February 14, 2014, and oral argument is scheduled for February 24, 2014.

Summary of the DC Circuit Decision

In the June 2012 decision, Coalition for Responsible Regulation v...