Hester – on Supreme Court’s decision to review EPA’s greenhouse gas regulations

Oct. 15, 2013- The U.S. Supreme Court has agreed to review certain aspects of the EPA’s greenhouse gas program in response to a challenge from more than 80 parties, including 17 states, which claim the agency’s attempt to address climate change places an undue financial burden on them. The high court will review a June 2012 ruling by the U.S. Court of Appeals for the District of Columbia Circuit which upheld EPA's greenhouse gas program, including the agency's finding that greenhouse gases endanger public health. The court is likely to take up the case early next year. The case is the court's most high-profile environmental case since its 2007 decision in Massachusetts v. EPA, which held that EPA must regulate greenhouse gases as a pollutant under the Clean Air Act.

Tracy Hester teaches environmental law and emerging technology courses at the University of Houston Law Center. His research focuses on the innovative application of environmental laws to emerging technologies and risks, such as climate engineering, nanotechnologies, genetic modification, wind and other renewable power projects, and on novel compliance and liability issues

Hester commented on the implications of the Supreme Court’s announcement.

What is the significance of Supreme Court agreeing to hear this case?

This case challenges EPA's decision to require permits under the Clean Air Act for greenhouse gas emissions from large stationary sources such as power plants and refineries.  EPA previously issued a package of broad rules that reinterpreted the federal Clean Air Act in a way that required permits for greenhouse gas emissions, but only for the largest emitters.  When numerous industry groups and states challenged the rules, the D.C. Circuit upheld EPA's authority to issue the regulations and denied the ability of many of the petitioners to raise objections.  The Court's decision to review the D.C. Circuit's ruling might signal the Court's intent to narrow EPA's Clean Air Act authority to mandate greenhouse gas permits for new or modified large facilities.

What is at stake?

EPA's greenhouse gas permitting rules apply to sweeping segments of the U.S. economy, including coal-fired power plants, refineries, oil and gas, chemical production, mining and other sectors.  This case itself is the culmination of numerous petitions filed by dozens of parties, and it is one of the largest and most significant environmental cases since the Court originally ruled in 2007 that the Clean Air Act could extend to greenhouse gas emissions.  And, of course, the ability of the United States to respond to climate change under the current Clean Air Act will ultimately play a central role in international efforts to combat climate change as well as U.S. participation in upcoming negotiations for a new treaty to replace the Kyoto Protocol.

Any thoughts on likely outcome?

It's always risky to predict how the Court will rule in a particular case, but the fact that it granted certiorari means that at least four justices think that the issue is important enough to reconsider the lower court's opinion that favored EPA.  The Court carefully selected only one issue to review out of the multiple petitions, and that question is widely viewed as the most troublesome for the federal government.

To schedule a media interview with Professor Hester, contact Carrie Criado, Executive Director of Communications and Marketing, 713-743-2184, cacriado@central.uh.edu; or John T. Kling, Communications Manager, 713-743-8298, jtkling@central.uh.edu.