By Craig B. Simonsen

Janet McCabe, Acting Assistant Administrator, U.S. Environmental Protection Agency, discussed yesterday’s Supreme Court opinion, and other topics, while speaking before the Air and Waste Management’s Association’s Annual Conference today.

The Supreme Court

The Supreme Court yesterday ruled, in-part, that “EPA lacked authority to ‘tailor’ the Clean Air Act’s unambiguous numerical thresholds of 100 or 250 tons per year to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers.” As such, the Court said “Agencies must always ‘give effect to the unambiguously expressed intent of Congress’.”

While this might appear as a loss or set-back for the Agency, McCabe put a positive spin on it, saying that EPA is “very pleased” because the Court upheld EPA’s overall authority to regulate greenhouse gases under the Clean Air Act.  The Court allowed EPA to continue regulation of greenhouse gas emissions using Best Available Control Technology (BACT) for the so-called “anyway” sources (those that are required to obtain permits from EPA because they emit other covered pollutants ‘anyway’). The Court said, “EPA’s decision to require BACT for greenhouse gases emitted by sources otherwise subject to PSD review is, as a general matter, a permissible interpretation of the statute under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.” Utility Air Regulatory Group v. Environmental Protection Agency et al., No. 12–1146, __ US ___ (June 23, 2014).

The Economy

On other topics, McCabe quoted EPA Administrator Gina McCarthy, who, citing statistics, indicates that in the last forty years the Agency has reduced air pollution by 70 percent, while the nation’s economy has tripled. It is the Administration’s position that cleaning up the environment is good for the economy. The “success of the Clean Air Act” is its ability to grow industry while cleaning up the air we breathe.

Existing Power Plant Rules

On the recent proposed rule, known as the “Clean Power Plan,” to drastically cut carbon dioxide emissions from existing power plants across the United States by the year 2030, McCabe noted that the Agency merely proposed reasonable reductions across the country, and has left the implementation of the standards and reductions to the states.

The Agency had received over 100,000 public comments on the proposed rule before it was even published.

New Power Plant Rules

McCabe noted that the Agency received over 2.5 million public comments on the proposed rule for new power plants. She said that the Agency will “spend a lot of time” reviewing about 11,000 of the public comments.

Transportation Rules

McCabe indicated that EPA is working to develop a proposal, to publish by March 2015, that will further regulate fuel use in heavy duty fleets. The rule is scheduled for adoption by 2016.

The Agency is also looking at further regulation of hydrofluorocarbons. EPA is working with the auto manufacturers to move the industry to using better, lower emission substitutes. EPA is working on and preparing new rules on this.

Landfill Gas Rules

As part of the President’s Clean Air Plan, he asked that the Agency develop a methane strategy. In response, McCabe said that landfill gas rules are up for revision, and that methane is going to be reviewed closely, with changes anticipated.

Oil and Gas Industry

McCabe indicated that the Agency had recently released a series of white papers on hydraulic fracturing in the oils and gas industry. She said that the comments they have been receiving on the white papers have been mixed, so the Agency is watching that, and will “see where it goes.”