The U.S. Supreme Court issued two decisions regarding the Clean Air Act on April 2nd. In Environmental Defense v. Duke Energy, all nine justices rejected the 4th Circuit’s rationale that the term “modification” must be construed consistently in determining whether new source performance standards or prevention of significant deterioration (”PSD”) permit requirements are triggered. The 4th Circuit threw out the PSD regulations, which applied to major modifications resulting in annual emission increases compared to the prior two years, as inconsistent with the hourly emission increase trigger for new source standards. By invalidating the regulations, the 4th Circuit’s analysis ran afoul of the judicial review provisions of the Clean Air Act, which state that challenges to the validity of regulations must be brought in the District of Columbia Circuit within 60 days of promulgation.
Citing the tax case United States v. Cleveland Indians Baseball Co. and others, the Court remanded the case to the 4th Circuit stating, “Although we presume that the same term has the same meaning when it occurs here and there in a single statute, the Court of Appeals mischaracterized that presumption as “effectively irrebuttable.” Issues the 4th Circuit must consider on remand include whether review could have been obtained in accordance with the Act’s judicial review provisions and whether Duke can press a claim based on retroactive targeting of previously acceptable practices.
In Massachusetts v. Environmental Protection Agency, by a 5-4 majority, the Court rejected EPA’s arguments that Massachusetts lacks standing to appeal the denial of its petition for rulemaking regulating greenhouse gas emissions from motor vehicles. The majority also rejected EPA’s contention that carbon dioxide is not an air pollutant. Justice Stevens wrote, “Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do… To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design.” The majority seemed unusually critical of the administration, chastising it for refusing to comply what they regarded as a clear statutory command, presenting instead “a laundry list of reasons not to regulate.”
The dissenters, Chief Justice Roberts, and Justices Scalia, Thomas and Alito, disagreed that Massachusetts had standing under Article III, §2 of the Constitution. Justice Scalia also took to task the majority’s definition of “air pollutant.”
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