High court partially upholds President’s climate-change rule

The U.S. Supreme Court partially upheld one of President Barack Obama’s early efforts against climate change, saying the Environmental Protection Agency had authority to impose new permitting requirements on large power plants and factories.

The permitting rules apply when facilities are built or expanded, and the court Monday said the EPA can’t apply that requirement to smaller facilities such as apartment buildings or restaurants. Even with the curb, facilities responsible for 83 percent of those emissions will face reviews.

“The vast bulk of the carbon pollution is still subject to the permitting requirements,” David Doniger, chief climate lawyer at the Natural Resources Defense Council, said in an interview.

The decision Monday is separate from the administration’s more comprehensive climate-change proposal released June 2 to cut carbon emissions from existing power plants, and doesn’t set any precedent that could alter that plan, said Ricky Revesz, director of the Institute for Policy Integrity at New York University.

‘Stark reminder’

The decision “is a stark reminder that EPA’s power is not unlimited,” said Harry Ng, the general counsel of American Petroleum Institute, a Washington-based group that represents companies such as Exxon Mobil Corp. “Today’s decision will help to ensure that permitting requirements fall within the authority granted by Congress.”

The Supreme Court gave the EPA a preliminary victory in October, refusing to consider arguments that would have barred the agency from combating climate change at all. That left states and business groups fighting the permit rules, which they said may ultimately affect millions of facilities.

Monday’s ruling, which splintered the court, may head off that possibility, limiting the rules to a few hundred facilities that already have to get permits for other pollutants. The justices said greenhouse-gas emissions by themselves can’t serve as the trigger for a permit requirement.

“The Supreme Court largely upheld EPA’s approach to focusing Clean Air Act permits on only the largest stationary sources of greenhouse gases such as power plants, refineries and other types of industrial facilities,” Liz Purchia, an EPA spokeswoman, said in a statement.

Emission controls

The permitting requirements are part of the EPA’s Prevention of Significant Deterioration program under the Clean Air Act. Under that program, facilities must install the best available technology to control emissions from new or modified major sources of air pollution. That permitting process can take a year or more.

The effect of the permitting program so far has been limited. Since 2011, 172 greenhouse-gas permits have been issued, according to the EPA.

The industries primarily affected by the requirements are power plants, chemical facilities, oil and gas projects and cement plants, according to the EPA. Companies that have applied for permits include Calpine Corp., ExxonMobil and Occidental Petroleum Corp.

The heart of the decision focused on requirements in the Clean Air Act that facilities get a review if they emit any air pollutant at 100 tons or 250 tons, depending on the type of source. While that is a large amount for traditional pollutants such as mercury or sulfur dioxide, it could cover many more facilities if carbon dioxide emissions were counted at that level.

‘Incompatible’ requirement

“Like EPA, we think it beyond reasonable debate that requiring permits for sources based solely on their emission of greenhouse gases at the 100- and 250-tons-per-year levels set for in the statute would be ‘incompatible’ with ‘the substance of Congress’s regulatory scheme,’” Justice Antonin Scalia wrote in the majority opinion.

Scalia was joined by six justices in upholding the EPA’s ability to do the greenhouse-gas permits, while four were with him in striking down the EPA’s tailoring provision.

Before Monday’s decision, the EPA had instituted a provision to “tailor” the applicability of the permits to larger facilities as a way to get around the tonnage requirement. That system was tossed by the court Monday.