On May 7, the Environmental Protection Agency (EPA) published a direct final rule in the Federal Register. The rule allows for rescission of certain Prevention of Significant Deterioration (PSD) permits under the Clean Air Act. The agency took this step in response to the Supreme Court’s decision last year in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).
In UARG, the Court struck part of EPA’s so-called Tailoring Rule. In this Rule, EPA had provided that new or modified stationary sources emitting more than a certain amount of greenhouse gases must obtain PSD permits, limiting their emissions of greenhouse gases, whether or not they also emit one or more traditional pollutants at a level sufficient to trigger such a requirement. But because sources emit greenhouse gases in much greater quantities than they do traditional pollutants, applying the express statutory threshold designed with those pollutants in mind could have required EPA to issue permits to millions of sources nationwide. In the Rule, EPA therefore purported to alter the statutory threshold to a much higher level. Continue Reading