Legal Updates & News
Legal Updates
Supreme Court Round-up: Environmental Cases
Figure Big on this Year's Docket
March 2007
by Priscillia B. de Muizon
Four environmental law cases are currently pending before the United
States Supreme Court. The outcome of these closely watched cases will have far-reaching
implications for various interested parties, including the energy and building industries, regulators,
and environmentalists.
Massachusetts v. Environmental Protection Agency
In Massachusetts v. Environmental Protection Agency, twelve states, three cities, and several
environmental organizations sued in the D.C. Circuit Court of Appeals, seeking an injunction
requiring the United States Environmental Protection Agency (EPA) to regulate carbon dioxide
emissions from new motor vehicles. At issue in the case is section 202(a)(1) of the Clean Air Act
(CAA), which directs the EPA to regulate air pollutants from new motor vehicles “which in [the
administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated
to endanger public health or welfare.” The plaintiffs argue that greenhouse gases such as carbon
dioxide constitute such pollutants covered by the Act. In response, the EPA has argued that it does
not have the statutory authority to regulate greenhouse gases, and that it would not do so even if it
did.
In addition to the fundamental issue of whether the CAA authorizes regulation to address global
climate change, the case presents the complicated and politically charged question of whether, if the
CAA authorizes such regulation, the EPA administrator may decline to issue emission standards for
motor vehicles based on policy considerations outside of section 202(a)(1), such as scientific
uncertainty, potential foreign policy implications, and the President’s climate change policy.
With all of the attention focused on climate change right now, Massachusetts v. EPA has become
one of the most anticipated environmental decisions from the Court in years. If the Court addresses
whether greenhouse gases do, or do not, fall within the scope of the Clean Air Act, this case may
fundamentally re-shape the evolving and hotly debated issue of global warming regulation at the
national, state, and local levels.
Environmental Defense v. Duke Energy Corp.
This second Clean Air Act case pending before the Court involves an enforcement action against
Duke Energy for failing to obtain permits under the Act’s Prevention of Significant Deterioration
(PSD) provision for modifications made to its coal-fired power generation units. These modifications
did not change the units’ hourly output of emissions, but allowed the units to run for more hours each
day. With an increase in daily operations, total annual emissions for each unit also increased. Under
the PSD program a permit must be obtained each time a physical change or modification is made
which results in a significant net emissions increase. While the New Source Performance Standards
(NSPS) provision of the Act defines “modifications” based on hourly emissions, the EPA’s
regulations under the PSD program look to annual increases in emissions.
Related Practices:
zEnvironmental Law
zLand Use & Natural
Resource Law
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