Changing Planet

Supreme Court Divided After Hearing on EPA Authority

In a hearing Monday, the Supreme Court questioned whether the U.S. Environmental Protection Agency (EPA) is correct in its interpretation that regulating greenhouse gas emissions from vehicles triggers the requirement to also implement permitting requirements for large stationary sourcesAt issue is the legality of EPA’s interpretation of the Prevention of Significant Deterioration (PSD) regulations. Industry groups argue that the PSD permitting requirements apply to certain pollutants, whereas the EPA argues that they apply to all pollutants, including greenhouse gases. Ultimately, the more than 90-minute session ended with the justices divided over whether the EPA’s regulation of stationary source emissions through permitting requirements under the Clean Air Act was “a sensible accommodation or an impermissible exercise of executive authority.”

“As is so often the case when the court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt,” said SCOTUS blogger Lyle Denniston. “Although he seemed troubled that Solicitor General Donald B. Verrilli Jr. could call up no prior ruling to support the policy choice the EPA had made on greenhouse gases by industrial plants, Kennedy left the impression that it might not matter.”

decision is expected by June. According to experts, the court’s ruling could have a range of effects on EPA’s permitting requirements.

If the Supreme Court rules against the EPA, the agency has several options, said Nicholas Institute for Environmental Policy Solutions’ Climate and Energy Program Director Jonas Monast (subscription). It could, for instance, devise new source performance standards for each individual source or regulate sources under another Clean Air Act program.

Nuclear Reviving

As some residents near the site of the Fukushima Daiichi nuclear power plant disaster get the “all clear” to return to their homes April 1, Japan announced a plan to revive its nuclear program.

Overturning a previous commitment to phase out all nuclear, the draft government plan, which awaits Cabinet approval, instead calls for more long-term reliance on the energy source. It specifies that nuclear dependency will remain low but that reactors meeting standards set after the 2011 Fukushima disaster should be restartedThe Wall Street Journal reports 17 such reactors are undergoing inspection now.

In the United States, Energy Secretary Ernest Moniz provided final approval for a $6.5 billion dollar loan guarantee that will be used to construct two nuclear reactors in Georgia—the first built in the United States in more than 30 years. Days later, President Barack Obama approved a deal with Vietnam that would allow the nation to develop nuclear power.

Obama: Decision on Keystone Could Come Soon

decision on whether to approve the Keystone XL pipeline—carrying crude oil from Canada to the Gulf Coast—will be made in the next “couple of months,” President Barack Obama told attendees at the annual National Governors Association winter meeting Monday. The White House declined to expand on Obama’s comment at the private meeting. Politico reports that it contradicts speculation by parties on both sides that the decision will come after November’s mid-term elections. That speculation began last week after a ruling by a Nebraska judge that struck down a state law approving the pipeline’s route through the state.

The president’s Keystone decision comment came a day after Canada’s National Energy Board audit found TransCanada Corp—the company leading the Keystone XL project—could make improvements in its pipeline safety practices. The audit was moved up after a then-employee of TransCanada came forward with allegations of safety lapses.

“The audit has confirmed that, in response to these allegations, TransCanada has developed and implemented a program of actions with the goal of correcting and preventing similar occurrences,” the National Energy Board said. The board found TransCanada to be non-compliant in four areas: hazard identification, risk assessment and control; operational control in upset or abnormal operating condition; inspection, measurement and monitoring; and management review.

Despite claims the State Department violated conflict of interest rules when it chose an outside contractor to conduct an environmental impact study of the proposed pipeline, a report issued Wednesday found otherwise.

The Climate Post offers a rundown of the week in climate and energy news. It is produced each Thursday by Duke University’s Nicholas Institute for Environmental Policy Solutions.

Tim Profeta is the founding director of the Nicholas Institute for Environmental Policy Solutions. The Nicholas Institute is part of Duke University and focuses on improving environmental policy making worldwide through objective, fact-based research in the areas of climate change, the economics of limiting carbon pollution, oceans governance and coastal management, emerging environmental markets and freshwater concerns at home and abroad. In his role at the Nicholas Institute, Profeta has continued to use his experience on Capitol Hill to engage in climate change debates. His research has focused, specifically, on market-based approaches to environmental regulations—particularly energy and climate change policy. Other projects engage his expertise in environmental law and air pollution regulation under the Clean Air Act.

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