On April 19, 2013, a Texas-led state coalition filed a petition with the US Supreme Court requesting review of the D.C. Circuit’s June 26, 2012 decision upholding USEPA’s Greenhouse Gas (GHG) rules. That decision (summarized here) upheld the agency’s Endangerment Finding and Tailpipe Rule before determining that state and industry opponents lacked standing to challenge USEPA’s Timing and Tailoring Rules.  The Texas petition, which calls the Tailoring Rule “one of the most audacious power-grabs ever attempted by an administrative agency,” goes further than other requests for review of the D.C. Circuit’s decision and asks that the US Supreme Court partially overturn its landmark 2007 Massachusetts v. EPA holding that established USEPA’s authority to regulate GHGs under the Clean Air Act.

Specifically, the petition presents three issues for the high court to consider:

  1. Whether USEPA’s Tailoring Rule violates the Act by replacing Congress’s unambiguous numeric permitting thresholds with criteria of USEPA’s own choosing  and whether the D.C. Circuit improperly ducked this question on Article III standing grounds.
  2. Whether Congress authorized USEPA to regulate greenhouse-gas emissions from stationary sources, given that the Act imposes permitting thresholds that are absurdly low if applied to carbon dioxide.
  3. Whether Massachusetts v. EPA should be reconsidered or overruled in light of the absurd permitting burdens that follow from treating carbon dioxide as an air pollutant under the Act.

For support, the petition cites two dissenting opinions from the D.C. Circuit’s December 20, 2012 rejection of Petitioners’ Request for a Rehearing, which questioned the “interpretative shortcomings” of Massachusetts and USEPA’s rulemaking actions in light of that decision.  Other states signing on to the petition include: Alabama, Florida, Georgia, Indiana, Louisiana, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina, and South Dakota.

These states will face an uphill battle in their bid to overturn the Massachusetts decision, especially given the U.S. Supreme Court’s reliance on that decision in their recent American Electric Power v. Connecticut ruling (summarized here).  Moreover, the D.C. Circuit’s June 26, 2012 opinion was unanimous and placed heavy reliance on statutory language and agency deference, making it unlikely that the US Supreme Court will grant review.  As Texas lawmakers (some of the staunchest critics of USEPA’s GHG rules) consider legislation (HB 788) that would finally allow the state to take responsibility for issuing GHG permits, one cannot help but wonder if this petition represents one last parting shot at the agency’s GHG plans before the states resign themselves to the current realities of GHG regulation.

USEPA and proponents of the GHG program rules are expected to file their responses to the Texas petition and related state and industry requests later this summer.  The justices will likely decide whether they will review any of the issues presented in the petitions sometime next fall.