Frustrating the Clean Air Act's Goals

Today, the Supreme Court of the United States heard oral argument on a case concerning the ability of the U.S. Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act. At first glance, this case deals with only a narrow technical legal issue. Does the term "any air pollutant" under one of the Clean Air Act's many programs mean any air pollutant regulated by the Clean Air Act, as maintained by the U.S. Environmental Protection Agency and by the opinion of the United States Court of Appeals for the D.C. Circuit upholding this interpretation? Or does it mean only a subcategory of such pollutants, as maintained by the regulation's challengers?

The broad interpretation of the provision was not an Obama administration innovation: It has been the consistent position by EPA over more than 30 years, including under the administrations of presidents George H.W. Bush and George W. Bush. The courts typically defer to such longstanding consistent interpretations. And, the challengers have inconsistent theories as to which subcategory is the right one, considerably weakening their claim that their position is consistent with the plain meaning of the statute.

Importantly, the case does not call into question EPA's ability to regulate greenhouse gases under important provisions of the Clean Air Act. In 2007, in the landmark case of Massachusetts v. EPA, the Court held that greenhouse gases are "air pollutants" for the purposes of the Act. And, in 2009, EPA found that greenhouse gases "endanger public health and welfare," thereby determining that they must be regulated under the statute. The D.C. Circuit upheld this determination as well as the regulation of greenhouse gas emissions from automobiles, which was made possible by the endangerment finding. The Supreme Court declined to review these matters, effectively foreclosing broad challenges to greenhouse gas regulation.

And, the challengers in this case concede, as they must given the plain meaning of the statute, that EPA's recently proposed rules controlling the greenhouse gas emissions of new power plants are on strong legal footing. A corollary to their concession is that EPA can similarly regulate existing power plants as well as other categories of polluters.

Nonetheless this case matters, and what challengers are doing must be understood as part of a campaign by polluters, now almost half a century long, to evade the requirements of the Clean Air Act.

In 1970, Congress designed a carefully balanced compromise between the treatment of new sources, which became subject to stringent regulation, and of existing sources, which were exempted from this regulation until the engaged in "modifications," which Congress defined as physical changes that increase pollutions. So, the idea was that there would be some grandfathering of the existing sources but also a transition path for them to eventually be subject to the regulations. Because many of the polluters in operation in 1970 were decades old and approaching obsolescence, Congress anticipated that the transition would happen relatively quickly.

Sadly, this was not the case. In part, the dual regulatory structure created incentives for existing sources to remain in operation longer than they would otherwise have done. But polluters have taken every opportunity, for decades, to frustrate this goal. For example, they have for years been maintaining that "total life extension" projects, under which totally new plants are built inside the shell of existing sources, are not "physical changes," and therefore do not trigger regulation.

Just two months ago, the Supreme Court heard oral argument on another case dealing with the scope of grandfathering, in which many of the same industry groups that will appear before the Court today argued that one of EPA's longstanding interpretation, also consistently maintained over 30 years and by administrations of both parties, should be set aside. The reason: that EPA was wrong in allocating the pollution control burden between upwind and downwind sources in the way that minimized the aggregate costs of meeting federal ambient standards? Why would polluters want EPA to allocate this burden in a more expensive way? The reason is that their approach would place a great deal of the burden on sources in northeastern states, which have already significantly reduced their pollution, rather than on Midwestern sources that have not done so and could therefore reduce pollution far more cheaply. And what argument did they use to justify this approach: fairness? But by fairness they must mean punishing the responsible and letting the irresponsible get away with the deaths each year of the tens of thousands of individuals affected by this pollution.

The same groups return to the Court today to urge it to weaken another of the Clean Air Act's provisions that limit grandfathering. And, in the process of carving out an exception for greenhouse gases, they would also carve out exceptions for a number of other dangerous pollutants, including sulfuric acid, hydrogen sulfide, and ozone depleting substances, which have been regulated for years. What appears as a narrow technical argument about the meaning of "any air pollutant" -- is part of a concerted, longstanding strategy to frustrate a key congressional goal and to let obsolete sources, which should have been retired decades ago, to keep spewing large quantities of dangerous pollutants and damaging our health and the environment.

Strikingly, industry representatives made precisely the opposite argument to the Supreme Court in a 2011 case. Then, they argued that the regulations at issue here represented decades of thought and compromise between agencies and interest groups, that courts should be wary to disrupt that delicate balance, and therefore that individuals should not receive compensation for their injuries. Now, when being on the opposite side of the same issue suits their interest, they reverse that position, arguing that EPA should throw out the carefully crafted, decades-long interpretations that these industry groups so praised just three years ago.

Today's case is just one of hundreds of stall tactics by industrial polluters in their nearly half-century campaign to evade the requirements of the Clean Air Act. As so many of our citizens continue to die as a result of these stall tactics, we can't be blamed for feeling waves of déjà vu.

Richard L. Revesz is counsel of record for the Institute for Policy Integrity on an amicus brief in this case.