One doesn’t typically associate Justice Antonin Scalia with environmental victories, but Monday’s Supreme Court decision in Utility Air Regulatory Group v. Environmental Protection Agency (“UARG”) is just that, albeit with caveats we’ll address below.
Let’s start with the good news. In a 7-2 opinion written by Scalia — and joined by Chief Justice John Roberts, Justice Anthony Kennedy, and the court’s four progressives — the court held that the Environmental Protection Agency may regulate the greenhouse gas emissions of any “major emitting facility” already required to receive a permit under the Clean Air Act’s Prevention of Significant Deterioration (“PSD”) program due to its emission of other air pollutants. According to EPA calculations, this reading of the statute covers roughly 83 percent of stationary sources of greenhouse gas emissions in America.
So, even as this part of the court’s ruling comports only with the EPA’s “fallback” position, this position was still one that Solicitor General Donald Verrilli advanced forcefully in the government’s brief, that drew the most attention during the UARG oral argument earlier this year, and that ulti... Read more