# Federal Agency Actions Following the Supreme Court’s Climate Change Decision in Massachusetts v. EPA: A Chronology

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3AR41103

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 4, 2015
- **Citation:** R41103

## Text

Federal Agency Actions Following the
Supreme Court’s Climate Change Decision
in Massachusetts v. EPA: A Chronology
name redacted
Legislative Attorney
May 4, 2015

Congressional Research Service
7-....
www.crs.gov
R41103

Federal Agency Actions Following the Supreme Court's Climate Change Decision

Summary
In 2007, the Supreme Court rendered one of its most important environmental decisions. In
Massachusetts v. EPA, the Court held 5-4 that greenhouse gases (GHGs), widely viewed as
contributing to climate change, constitute “air pollutants” as that phrase is used in the Clean Air
Act (CAA). As a result, said the Court, the U.S. Environmental Protection Agency (EPA) had
improperly denied a petition seeking CAA regulation of GHG emissions from new motor vehicles
by citing, among other reasons, the agency’s lack of authority over such emissions.
This report offers a chronology of major federal agency actions, mainly by EPA, that involve
GHGs or climate change and that occurred after Massachusetts v. EPA. Most of the listed actions
trace directly or indirectly back to the decision. Examples include EPA’s “endangerment finding”
for GHG emissions from new motor vehicles; the resulting EPA standards (issued on multiple
occasions) for GHG emissions from new motor vehicles; EPA’s proposal of performance
standards (again on separate occasions) for CO2 emissions from new, and modified or
reconstructed, fossil fuel-fired power plants; and EPA’s proposal of emission guidelines for CO2
emissions from existing fossil fuel-fired power plants. Several listed EPA actions, taken on the
agency’s view that regulation of GHG emissions from new motor vehicles triggers new source
review of GHG stationary sources, are now either void or will have to be limited slightly in
scope, owing to the 2014 decision of the Supreme Court in Utility Air Regulatory Group v. EPA.
A few agency actions were included in the report solely because of their relevance to climate
change and their post-Massachusetts occurrence—that is, they were not legally compelled by
Massachusetts v. EPA or EPA actions tracing back to that decision. Examples include EPA’s
responses to California’s request for a waiver of CAA preemption allowing that state to set its
own limits for GHG emissions from new motor vehicles; OMB’s “social cost of carbon” dollar
amount to be used in agency cost-benefit analyses; the Council on Environmental Quality’s draft
guidance on how climate change is to be considered in environmental impact statements; and
EPA’s monitoring rule for GHG emissions.
More analytical treatment of the government actions in this report may be found in other CRS
reports listed in footnote 16 herein.

Congressional Research Service

Federal Agency Actions Following the Supreme Court's Climate Change Decision

Contents
Introduction...................................................................................................................................... 1
2008 ................................................................................................................................................. 3
2009 ................................................................................................................................................. 4
2010 ................................................................................................................................................. 5
2011 ................................................................................................................................................. 8
2012 ................................................................................................................................................. 8
2013 ................................................................................................................................................. 9
2014 ............................................................................................................................................... 10
2015 ............................................................................................................................................... 12

Appendixes
Appendix. Table of Acronyms ....................................................................................................... 13

Contacts
Author Contact Information........................................................................................................... 13

Congressional Research Service

Federal Agency Actions Following the Supreme Court's Climate Change Decision

Introduction
In 2007, the Supreme Court rendered one of its most important environmental decisions. The
case, Massachusetts v. EPA,1 was a challenge to the denial by the Environmental Protection
Agency (EPA) of a petition asking it to take two actions—(a) find under the Clean Air Act (CAA)
that greenhouse gases (GHGs) emitted from new motor vehicles “cause, or contribute to, air
pollution which may reasonably be anticipated to endanger public health or welfare,”2 through
their climate change effects, then (b) issue standards for those GHG emissions. EPA’s petition
denial was based in part on its claim that it lacked authority to regulate GHGs. To the contrary,
said the Supreme Court by 5-4, GHGs constitute “air pollutants” under the CAA, hence EPA does
indeed have the authority to regulate GHG emissions.3 The Court gave EPA three options:
(a) determine that GHG emissions from new motor vehicles “cause, or contribute to, air pollution
which may reasonably be anticipated to endanger public health or welfare,” then promulgate
standards limiting those emissions; (b) determine that such GHG emissions do not cause or
contribute to such endangerment; or (c) explain adequately why the agency cannot or will not
make a determination under either (a) or (b).4
EPA chose option (a)—that is, to make a positive “endangerment finding” for GHG emissions
from new motor vehicles. That finding was made in December 2009, and under CAA section 202
required EPA to promulgate standards for new motor vehicle emissions to address the
endangerment.5 That action, or rather actions, the agency also has taken, beginning in May 2010.
In EPA’s view, the 2010 motor vehicle standards, in turn, triggered CAA duties for stationary
sources (factories, power plants) of GHG emissions as well.6 More specifically, the agency
adopted regulations under which major new stationary sources and major modifications of
existing stationary sources, when proposed for Prevention of Significant Deterioration (PSD)
areas, must undergo “new source review” based on their expected CO2 emissions.7 If subject to
PSD new source review, the CAA required those sources to install “best available control
technology” (BACT) to control GHG emissions.8 Reading the CAA literally, EPA believed, new
source review and BACT would be required for any major new source or modification that
emitted or increased CO2 emissions by the same low threshold amount applied by the CAA to
non-GHG emissions. And the BACT requirement, EPA argued further, triggered CAA Title V
operating permitting requirements—again, on a literal reading of the CAA, with the same low

1

549 U.S. 497 (2007).
CAA § 202(a); 42 U.S.C. § 7521(a).
3
This Massachusetts holding was affirmed in American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011), with
respect to GHG coverage by CAA section 111, which applies to new stationary sources of air pollution. 42 U.S.C.
§ 7411. The Court held that the CAA displaces any federal common law under which federal judges might compel
reductions in CO2 emissions from fossil fuel-fired power plants separate from EPA’s regulatory program. The holding
was explicitly based on the Court’s position that CAA section 111 authorizes EPA to reduce GHG emissions from new
fossil fuel-fired power plants. 131 S. Ct. at 2537-2538.
4
549 U.S. at 533.
5
CAA § 202(a); 42 U.S.C. § 7521(a).
6
See, e.g., Advance Notice of Proposed Rulemaking, 73 Fed. Reg. 44420, 44498, and 44511 (2008). The Notice is
listed in this report under “July 30, 2008.”
7
See, e.g., 75 Fed. Reg. 31514. This is the “tailoring rule,” listed in this report under “June 3, 2010.”
8
CAA § 165(a)(4); 42 U.S.C. § 7475(a)(4).
2

Congressional Research Service

1

Federal Agency Actions Following the Supreme Court's Climate Change Decision

threshold as for non-GHG emissions.9 Given the huge amount of CO2 emitted by even some small
stationary sources, this literal reading of the CAA brought a correspondingly huge number of
sources under the act’s new source review, BACT, and Title V permitting requirements. In an
effort to shrink this large number to administratively practical levels, EPA construed the act to
allow a phase-in of the statutory thresholds through a so-called “tailoring rule.”10
In 2014, the Supreme Court in Utility Air Regulatory Group v. EPA11 rejected EPA’s argument that
regulation of motor vehicle GHG emissions necessarily triggers PSD new source review of the
same emissions from stationary sources. As the Court saw it, PSD new source review and BACT
cannot be triggered solely by a source’s GHG emissions.12 On the other hand, EPA’s application
of CO2 BACT to “anyway” sources—sources subject to new source review based on their nonGHG emissions—was seen by the Court as a reasonable reading of the CAA.13 In a related
holding, Utility Air Regulatory Group voided EPA’s tailoring rule as an impermissible rewriting
of the CAA’s emission thresholds.14
This report is a chronology of the major climate change-related actions taken by federal agencies,
principally EPA, in the wake of Massachusetts v. EPA. It does not include executive orders and
presidential proclamations.15 Most of the listed actions trace directly or indirectly back to the
Massachusetts decision. In contrast, a few were included solely because of their relevance to
climate change and their occurrence post-Massachusetts. That is, they were not legally compelled
by Massachusetts v. EPA or EPA actions in compliance therewith. More analytical treatment of
the listed agency actions may be found in other CRS reports.16
Please note—
•

Dates used are those of Federal Register publication wherever a Federal Register
citation is given. In most instances, however, the agency action was signed and
publicly announced weeks (or more) earlier.

•

Once an agency promulgates a final rule, the report’s entry for the proposed rule
has been deleted. A rule is not deleted for any other reason, such as subsequent

9

CAA §§ 501-507; 42 U.S.C. §§ 7661-7661f.
See note 7 supra.
11
134 S. Ct. 2427 (2014).
12
Id. at 2439-2446.
13
Id. at 2447-2449.
14
Id. at 2444-2446.
15
See, e.g., Exec. Order 13677, 59 Fed. Reg. 58231 (September 23, 2014) (“Climate-Resilient International
Development”) and Exec. Order 13653, 78 Fed. Reg. 66819 (November 1, 2013) (“Preparing the United States for the
Impacts of Climate Change”).
16
See CRS Report R42613, Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future, by
(name redacted); CRS Report RS22665,
The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA, by
(name redacted); CRS Report R43127,
EPA Standards for Greenhouse Gas Emissions from New Power Plants, by (name
redacted); CRS Report R40506,
Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile
Sources, by (name redacted) and (name redacted); CRS Report R42721,
Automobile and Truck Fuel Economy
(CAFE) and Greenhouse Gas Standards, by (name redacted), (name redacted), and (name redacted); CRS Report
R43572, EPA’s Proposed Greenhouse Gas Regulations for Existing Power Plants: Frequently Asked Questions, by
(name redacted) et al.; CRS Report R43652,
State CO2 Emission Rate Goals in EPA’s Proposed Rule for Existing
Power Plants, by (name redacted); and CRS Report R41212,
EPA Regulation of Greenhouse Gases:
Congressional Responses and Options, by (name redacted).
10

Congressional Research Service

2

Federal Agency Actions Following the Supreme Court's Climate Change Decision

invalidation by the courts or withdrawal by the proposing agency—developments
noted in footnotes that usually follow the boldface heading.

2008
March 6: EPA denies California’s request for waiver of CAA preemption. 73 Fed. Reg.
12156. The CAA preempts state controls on new motor vehicle emissions,17 but offers California,
and California alone, the opportunity to request a waiver of CAA preemption.18 EPA must grant
the preemption waiver if certain conditions are met.19 The importance of this “California waiver”
is magnified by the fact that once EPA grants the waiver, states that adopt motor vehicle emission
standards identical to California’s also partake of the preemption waiver for the same vehicles.20
In the present case, California sought a waiver of CAA preemption for its GHG emissions limits
for 2009 and later model year motor vehicles. EPA denied the waiver on finding that the state did
not need those emission limits to meet “compelling and extraordinary conditions,” as required by
the CAA.21 (See “July 8, 2009” for EPA’s reversal of this denial.)
July 30: EPA issues advance notice of proposed rulemaking regarding GHG emissions from
new motor vehicles. 73 Fed. Reg. 44354. This document sets out EPA’s view of the legal
implications were EPA to make a positive endangerment finding for GHGs from new motor
vehicles—as discussed in the introduction of this report, “option (a)” offered by the Supreme
Court.22 It is purely an informational document, prepared after the George W. Bush
Administration decided in late 2007 not to issue an endangerment finding for new motor vehicle
GHG emissions, but rather to leave that decision to the next Administration.
December 31: EPA Administrator publishes interpretive memorandum (“Johnson
memorandum”). 73 Fed. Reg. 80300. EPA Administrator Stephen Johnson issued this
memorandum, titled “EPA’s Interpretation of Regulations that Determine Pollutants Covered by
Federal Prevention of Significant Deterioration (PSD) Permit Program.” The memorandum
narrowly interprets the CAA phrase “pollutant subject to regulation under this act”23 to include
only pollutants regulated by actual, not potential future, emission limits under the CAA or its
regulations.
At the time, much hung on this distinction between actual, and potential future, emission limits.
In PSD areas of the country, the CAA requires only pollutants “subject to regulation under [the
CAA]” to be controlled by potentially expensive BACT—when emitted by new major emitting
facilities or major modifications of existing facilities. Since there were no “actual” GHG
regulations under the CAA when the Johnson memorandum was issued, this meant that for the

17

CAA § 209(a); 42 U.S.C. § 7543(a).
CAA § 209(b); 42 U.S.C. § 7543(b).
19
Id.
20
CAA § 177; 42 U.S.C. § 7507.
21
CAA § 209(b)(1)(B); 42 U.S.C. § 7543 (b)(1)(B).
22
Some of EPA’s discussion of these legal implications was rejected by the Supreme Court in Utility Air Regulatory
Group v. EPA, noted in the introduction of this report.
23
CAA § 165(a)(4); 42 U.S.C. § 7475(a)(4).
18

Congressional Research Service

3

Federal Agency Actions Following the Supreme Court's Climate Change Decision

near term at least, new major emitting facilities and major modifications of existing facilities
proposed for PSD areas did not have to install BACT for GHG emissions.24

2009
July 8: EPA grants California’s request for waiver of CAA preemption. 74 Fed. Reg. 32744.
This rule reversed EPA’s prior denial of California’s request for a preemption waiver (see “March
6, 2008”). As noted, its effect is to allow California’s GHG emissions limits for 2009 and later
model year motor vehicles to go into effect, and to allow the identical emission standards for the
same vehicles promulgated by other states to do likewise. Such “other states” now number 13,
plus the District of Columbia.
October 30: EPA finalizes mandatory GHG monitoring rule. 74 Fed. Reg. 56260. This rule,
known as the Greenhouse Gas Reporting Rule, was required by the FY2008 Consolidated
Appropriations Act,25 which instructed EPA to develop a rule “to require mandatory reporting of
GHG emissions above appropriate thresholds in all sectors of the economy”—using EPA’s
existing CAA authority. The rule was to take effect January 1, 2010, with the first monitoring
reports due in 2011.
This report does not list EPA’s many amendments and expansions of the Greenhouse
Gas Reporting Rule. See, for example, recent amendments including an alternative
verification approach plus final confidentiality determinations for the newly added
data elements, at 79 Fed. Reg. 63750 (October 24, 2014). To stay abreast, the reader
is referred to http://www.epa.gov/ghgreporting/reporters/notices/index.html.
December 15: EPA finalizes endangerment finding for GHG emissions from new motor
vehicles. 74 Fed. Reg. 66496. This endangerment finding, under CAA section 202(a),26 was
option (a) offered EPA by Massachusetts v. EPA, as noted in the report’s introduction. Parsing the
language of section 202(a), EPA actually concluded that two component endangerment findings
were required. Based on the “air pollution that may reasonably be anticipated to endanger ... ,”
phrase, the first finding was that six GHGs otherwise present in the atmosphere are reasonably
likely to endanger both public health and welfare through their climate change impacts. Based on
the “cause, or contribute to” phrase, the second finding was that the four GHGs emitted by new
motor vehicles in the United States contribute to the endangering air pollution otherwise present
in the atmosphere. The compound endangerment finding has no effect on outside parties in itself;
its importance is that it triggers a duty under section 202(a) for EPA to promulgate emission
standards for new motor vehicles. (See “May 7, 2010” and later dates for those standards.)

24
Even under EPA’s interpretation of “pollution subject to regulation under this act” as referring to actual regulations
in effect, the date when PSD/BACT coverage was triggered for GHG stationary sources was January 2, 2011. Thus, the
interpretational debate in the Johnson memorandum is now moot, at least as to GHGs. Moreover, as discussed in the
report’s introduction, the Supreme Court decision in Utility Air Regulatory Group v. EPA limited the extent to which
PSD new source review and BACT are required for new and modified sources of GHGs.
25
P.L. 110-161, Div. F, tit. II; 121 Stat. 1844, 2128.
26
42 U.S.C. § 7521(a).

Congressional Research Service

4

Federal Agency Actions Following the Supreme Court's Climate Change Decision

2010
February 8: Securities and Exchange Commission issues guidance regarding corporate
disclosure related to climate change. 75 Fed. Reg. 6290. This interpretive release provides
guidance to public companies as to how existing Commission disclosure requirements apply to
climate change matters.
February 18: Council on Environmental Quality issues draft guidance under National
Environmental Policy Act (NEPA).27 This guidance memorandum from the Council is titled
“Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas
Emissions.” It sets out ways in which federal agencies can improve their consideration of GHG
effects in their evaluation of proposals for federal actions under NEPA, including in
environmental impact statements.
April 2: EPA finalizes its reconsideration of Johnson memorandum. 75 Fed. Reg. 17004.
After taking comments on how to interpret “subject to regulation” in the CAA, EPA decided to
continue with the interpretation in the Johnson memorandum (see “December 31, 2008”). In a
refinement, however, EPA stated that “subject to regulation” does not apply to a newly regulated
pollutant (like GHGs) until a regulatory requirement to control emissions of that pollutant not
only is promulgated, but also takes effect. For GHGs, that “regulatory requirement” is the new
GHG emission standards for light-duty motor vehicles, noted immediately below. Since these
standards did not take effect until January 2, 2011, PSD and Title V permitting requirements also
did not go into effect until then—or later under EPA’s tailoring rule finalized June 3, 2010.28
May 7: EPA and NHTSA jointly finalize rules setting GHG emission standards and fuel
economy standards for 2012-2016 model year light-duty vehicles. 75 Fed. Reg. 25323. The
EPA emission standards were mandated under the CAA once the agency finalized its
“endangerment finding” for new motor vehicles (see “December 15, 2009”). Regarding NHTSA,
the Energy Policy and Conservation Act, as amended in 2007, requires that agency to prescribe
separate fuel economy standards for passenger and non-passenger automobiles beginning with
model year 2011, to achieve a combined fuel economy average for model year 2020 of at least 35
miles per gallon.29 EPA and NHTSA acted jointly because motor vehicle GHG emissions are
directly linked to fuel consumption. In order to provide a consistent set of standards for auto
manufacturers to meet, the White House brokered an agreement under which EPA would develop
GHG emissions standards under the CAA that would be compatible with fuel economy standards
developed by NHTSA.
The EPA and NHTSA standards apply to passenger cars, light-duty trucks, and medium-duty
passenger vehicles, covering model years 2012 through 2016, and purport to represent a
harmonized and consistent national program. (California has announced its commitment to
support the national program: on April 1, 2010, it revised its GHG standards for model years
2012-2016 such that compliance with the federal GHG standards will be deemed compliant with

27
The guidance is available at http://www.whitehouse.gov/sites/default/files/microsites/ceq/20100218-nepaconsideration-effects-ghg-draft-guidance.pdf. NEPA is codified at 42 U.S.C. § 4321 et seq.
28
But see note 24 supra.
29
49 U.S.C. § 32902(b)(2)(A).

Congressional Research Service

5

Federal Agency Actions Following the Supreme Court's Climate Change Decision

California’s GHG standards.)30 Both EPA and NHTSA standards become more stringent each
year, culminating in an EPA fuel economy equivalent of 35.5 miles per gallon (mpg) and an
NHTSA fuel economy (CAFE) standard of 34.1 mpg, in model year 2016—each standard an
industry fleetwide average. Various factors explain the 35.5/34.1 difference.
June 3: EPA finalizes “tailoring rule.”31 75 Fed. Reg. 31514. This rule was to relieve the
overwhelming permitting burdens EPA asserted would, in the absence of the rule, fall on PSD and
Title V permitting authorities on January 2, 2011, when EPA’s light-duty vehicle rule for GHGs
(see immediately above) takes effect. The tailoring rule began, on January 2, 2011, with GHG
emissions thresholds for PSD new source review and Title V that are much higher than those in
the CAA (EPA hoped to phase in the statute’s low statutory thresholds after many years). Indeed,
the thresholds in the final tailoring rule are higher than those in the proposed rule. For example,
beginning January 2, 2011, PSD requirements will apply to projects that increase net GHG
emissions by at least 75,000 tons per year CO2 equivalent, but only if the project also
significantly increases emissions of at least one non-GHG pollutant. And no source emitting less
than 50,000 tons per year CO2 equivalent will be subject to PSD new source review or Title V
permitting before April 30, 2016.
August 13: EPA denies petitions to reconsider its endangerment finding for GHGs from new
motor vehicles. 75 Fed. Reg. 49556. After reviewing the 10 petitions, the agency concluded that
its December 15, 2009, endangerment finding (above) remains well-supported. Several petitions
argued that emails disclosed in late 2009, many from the Climate Research Center at the
University of East Anglia in England, suggested bias among climate-change scientists, warranting
a new look at the evidence for climate change and its causes.
November 10: EPA issues “PSD and Title V Permitting Guidance for Greenhouse Gases.”32
Full text at http://epa.gov/regulations/guidance/byoffice-oar.html. EPA issued this guidance to
assist permit writers and permit applicants in addressing the Clean Air Act’s PSD and Title V
permitting requirements for GHGs, which took effect on January 2, 2011, for certain new major
stationary sources and major modifications of stationary sources. Particularly important is the
guidance’s discussion of the process EPA recommends for determining BACT for GHGs from
such sources.
December 13: EPA finalizes PSD new source review “SIP call.”33 75 Fed. Reg. 77698. This
final rule asserted a finding that the EPA-approved SIPs of 13 states were substantially inadequate
to meet CAA requirements because they did not apply PSD requirements in their SIPs to GHGemitting sources. Owing to this finding, the rule issued a SIP call for each of the 13 states to
revise its SIP as necessary to correct such inadequacies,34 with deadlines ranging from December
22, 2010, to December 1, 2011. Note: if the state fails to correct its SIP by the deadline, the CAA
requires EPA to promulgate a federal implementation plan for the state.
30

See http://www.arb.ca.gov/regact/2010/ghgpv10/ghgpv10.htm.
In Utility Air Regulatory Group v. EPA, discussed in the report’s introduction, the Supreme Court invalidated EPA’s
“tailoring rule” as in conflict with the numerical emission thresholds in the PSD provisions of the CAA. 134 S. Ct. at
2444-2446. In any event, Utility Air Regulatory Group, as discussed earlier, held that the PSD program may apply to
GHG emissions only from “anyway” stationary sources, of which there are relatively few. Thus, that holding
eliminated the very need for a tailoring rule.
32
Note 31 supra applies here.
33
Note 31 supra applies here.
34
As required by CAA § 110(k)(5), 42 U.S.C. § 7410(k)(5).
31

Congressional Research Service

6

Federal Agency Actions Following the Supreme Court's Climate Change Decision

December 21: EPA enters into settlements agreeing to issue new source performance
standards for GHG emissions from “electric generating units” (power plants) and
petroleum refineries. Available at http://www.epa.gov/airquality/pdfs/boilerghgsettlement.pdf
(power plants) and http://www.epa.gov/airquality/pdfs/refineryghgsettlement.pdf (petroleum
refineries). The two settled lawsuits were petitions for review of EPA amendments to its existing
new source performance standards (NSPSs) for, respectively, electric generating units35 and
petroleum refineries.36 On each occasion, petitioners objected, EPA had declined to introduce
NSPSs for GHG emissions. In the settlements, EPA agreed to (a) propose by July 26, 2011,
NSPSs for GHG emissions from new/modified electric generating units and guidelines for
existing electric generating units, then promulgate final NSPSs and guidelines by May 26, 2012,
and (b) propose by December 10, 2011, NSPSs for GHG emissions from new/modified petroleum
refineries and guidelines for existing petroleum refineries, then promulgate final NSPSs and
guidelines by November 10, 2012. As to electric generating units, see “January 8, 2014” for
proposal of GHG NSPSs, “June 18, 2014” for proposal of emission guidelines for existing
sources, and “June 18, 2014” for proposal of performance standards for modified and
reconstructed sources. EPA has made no proposal as yet for petroleum refineries.
December 30: EPA finalizes rule to narrow previous approval of state Title V permitting
programs that apply to GHG-emitting stationary sources.37 75 Fed. Reg. 82254. This rule is a
companion to that immediately below. It narrowed EPA’s previous approval of state Title V
operating permit programs so that only stationary sources that exceed the GHG thresholds
established in the “tailoring rule” (see “June 3, 2010”) are covered as major sources by the
federally approved Title V programs in the affected states. By thus raising the GHG emissions
thresholds that apply Title V permitting to major sources in the affected states, this rule aimed to
reduce the number of stationary sources that will be required to have Title V permits, and thereby
reduce Title V permitting burdens for state permitting agencies and sources in the affected states.
December 30: EPA finalizes rule to narrow previous approval of SIP PSD programs that
apply to GHG-emitting stationary sources.38 75 Fed. Reg. 82536. This rule is a companion to
that immediately above. It narrowed EPA’s previous approval of SIP PSD programs that apply to
GHG-emitting stationary sources, by withdrawing approval of those programs to the extent they
apply PSD to GHG-emitting sources below the thresholds in the “tailoring rule” (see “June 3,
2010”). By thus raising the thresholds in 24 states above the statutory threshold, this rule aimed to
reduce the number of new stationary sources, or major modifications of existing sources, that will
be required to have PSD permits, and thereby reduce PSD permitting burdens for state permitting
agencies and sources in the affected states.

35

71 Fed. Reg. 9866 (2006).
73 Fed. Reg. 35838 (2008).
37
Note 31 supra applies here.
38
Note 31 supra applies here.
36

Congressional Research Service

7

Federal Agency Actions Following the Supreme Court's Climate Change Decision

2011
July 20: EPA finalizes rule deferring application of PSD and Title V permitting
requirements to CO2 emissions from bioenergy and other biogenic stationary sources.39 76
Fed. Reg. 43490. Such CO2 emissions are generated by combustion or decomposition of
biologically based material—as at solid waste landfills, manure management operations, and
electric utilities burning biomass fuels. The deferral, to allow EPA more time to examine how to
account for such emissions, was for three years. During this period, biogenic emissions were not
required to be counted for determining whether a source is subject to PSD and Title V permitting.
The deferral applied only to CO2 emissions and did not affect non-GHG pollutants or other GHGs
emitted from the combustion of biomass fuel.
September 15: EPA and NHTSA jointly finalize rules setting GHG emission standards and
fuel economy standards for 2014 and later model year medium- and heavy-duty vehicles. 76
Fed. Reg. 57106. These rules, weighing in at 958 pages (including preamble), respond to a
presidential memorandum of May 21, 2010,40 as well as the CAA. EPA’s emission standards and
NHTSA’s fuel economy standards apply to three categories of heavy-duty vehicles: combination
tractors, heavy-duty pickup trucks and vans, and vocational vehicles. The rules include separate
standards for the engines that power combination tractors and vocational vehicles. Certain rules
are exclusive to EPA, such as EPA’s hydrofluorocarbon standards to control leakage from air
conditioning systems in combination tractors, and pickup trucks and vans. EPA’s emission
standards began with model year 2014. NHTSA’s fuel economy standards are voluntary in model
years 2014 and 2015, becoming mandatory for most vehicle categories in model year 2016.

2012
April 13: EPA proposes performance standards for CO2 emissions from new fossil fuel-fired
electric generating units.41 77 Fed. Reg. 22392. The proposed rule, pursuant to CAA section
111(b), would require new fossil fuel-fired electric generating units (power plants) of greater than
25 megawatt capacity to meet an output-based standard of 1,000 pounds of CO2 per megawatthour—a standard based, according to EPA, on the performance of widely used natural gas
combined cycle technology. EPA had committed to issuing this proposed rule by July 26, 2011, in
a litigation settlement, noted under “December 21, 2010.”
October 15: EPA finalizes rule setting GHG emission standards for 2017-2025 model year
light-duty vehicles; NHTSA finalizes rule setting fuel economy standards for 2017-2021
model year light-duty vehicles and offers “best estimate” of fuel economy standards for
2022-2025 model year light-duty vehicles. 77 Fed. Reg. 62624 (minor correction on October 18,
2012, at 77 Fed. Reg. 64051). These rules respond to a presidential memorandum of May 21,

39

This rule was vacated by Center for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013), though by the time
this decision came down the three-year deferral period had only one more year to run.
40
Administration of Barack H. Obama, Memorandum on Improving Energy Security, American Competitiveness and
Job Creation, and Environmental Protection Through a Transformation of Our Nation’s Fleet of Cars and Trucks (May
21, 2010), available at http://www.gpo.gov/fdsys/pkg/DCPD-201000409/pdf/DCPD-201000409.pdf.
41
EPA has replaced this proposal with a new one, noted under “January 8, 2014.”

Congressional Research Service

8

Federal Agency Actions Following the Supreme Court's Climate Change Decision

2010,42 as well as to the CAA. The standards apply to passenger cars, light-duty trucks, and
medium-duty passenger vehicles and build on the model year 2012-2016 light-duty vehicle
standards (see “May 7, 2010”). EPA’s emission standards will be more stringent each year from
2017 to 2025, achieving, as an industry fleetwide average, the equivalent of 54.5 miles per gallon
(mpg) in model year 2025—if the emission reductions are achieved solely through improvements
in fuel efficiency. The first phase of NHTSA’s CAFE standards, for model years 2017-2021, is
projected to require, on an average industry fleetwide basis, a range from 40.3 to 41.0 mpg in
model year 2021. The second-phase standards, for model years 2022-2025, are not final, due to a
statutory requirement that NHTSA set CAFE standards not more than five model years at a time.
NHTSA projects that these standards could require, on an average industry fleetwide basis, from
48.7-49.7 mpg in model year 2025.
See entry under May 7, 2010, for statutory and historical background.

2013
May 30: Office of Management and Budget issues Technical Update of the Social Cost of
Carbon for Regulatory Impact Analysis Under Executive Order No. 12866.43 The “social cost
of carbon” estimates in this interagency “technical support document” are to facilitate federal
agency incorporation of the social benefits of reducing CO2 emissions into cost-benefit analyses
of proposed regulatory actions. Under Executive Order 12866,44 federal agencies are required to
assess the costs and benefits of proposed regulations. The social cost of carbon estimates in this
current version of the technical support document are based on updated versions of the
assessment models and are higher than those used in the 2010 technical support document.45
June 25: President Obama issues Power Sector Carbon Pollution Standards memorandum
setting deadlines for EPA issuance of standards. 78 Fed. Reg. 39535 (July 1, 2013). The
memorandum directs EPA to issue a revised version of its 2012 proposed new source
performance standards for GHG emissions from fossil fuel-fired power plants. The revised
proposed rule was due by September 20, 2013, to be followed by issuance of a final rule “in a
timely fashion.” (The proposed rule was indeed announced by the deadline; see below under
“January 8, 2014.”) The memorandum also directs EPA to issue standards, regulations, or
guidelines, as appropriate, for carbon emissions from existing power plants: a proposed rule by
June 1, 2014, a final rule by June 1, 2015, and a requirement that states submit implementation
plans by June 30, 2016.46

42

Id.
Available at https://www.federalregister.gov/articles/2013/11/26/2013-28242/technical-support-document-technicalupdate-of-the-social-cost-of-carbon-for-regulatory-impact.
44
58 Fed. Reg. 51735 (1993).
45
Minor corrections were made in the May 30, 2013, document in November 2013.
46
See CAA § 111(d); 42 U.S.C. § 7411(d).
43

Congressional Research Service

9

Federal Agency Actions Following the Supreme Court's Climate Change Decision

2014
January 8: EPA withdraws April 13, 2012, proposed performance standards for CO2
emissions from new fossil fuel-fired electric generating units and proposes revised
standards. 79 Fed. Reg. 1352 (withdrawal of 2012 proposal); 79 Fed. Reg. 1430 (proposed
revised standards). This withdrawal and reproposal, under CAA section 111(b), was announced
on September 20, 2013, the deadline in the President’s June 25, 2013, memorandum (above), but
took 3½ months to appear in the Federal Register. The revised proposal establishes separate new
source standards of performance for fossil fuel-fired electric steam generating units (EGUs) and
integrated gasification combined cycle (IGCC) units on the one hand, and for natural gas-fired
stationary combustion engines on the other—reflecting EPA’s separate determinations of the “best
system of emission reduction ... adequately demonstrated,” the emissions standard mandated by
the CAA.47 For EGUs and IGCC units, the standards are based on partial use of carbon capture
and storage as the best system of emission reduction; for natural gas-fired stationary combustion
engines, they are based on natural gas combined cycle technology.
June 18: EPA proposes emission guidelines for CO2 emissions from existing fossil fuel-fired
electric generating units.48 79 Fed. Reg. 34830. This proposed rule, under CAA section 111(d),
would complement the above CO2 controls on new fossil fuel-fired power plants. While few new
plants are anticipated in the foreseeable future, the June 18 proposal would apply to the far larger
universe of existing fossil fuel-fired power plants. The program would have two elements. First,
EPA proposes different CO2 emission reduction goals for each state, calculated by EPA based on
four “building blocks” (efficiency improvements at power plants, greater energy efficiency in
other sectors, and enhancing the use of low-emitting and renewable power sources) and weighing
each in light of the state’s fuel mix, electricity market, and other factors.49 The second element
requires states to develop state plans to reach EPA’s goals.50 In these plans, states can impose
whatever mix of the foregoing building blocks (or other measures) they choose, as long as the
EPA goal for the state is reached by 2030. Full responsibility for CO2 reductions need not rest
with fossil fuel-fired power plants; as noted, state plans can include “outside the fenceline”
measures such as energy efficiency programs and renewable portfolio standards.51
June 18: EPA proposes performance standards for CO2 emissions from modified and
reconstructed fossil fuel-fired electric generating units. 79 Fed. Reg. 34960. This proposal was
issued under CAA section 111(b), which mandates performance standards for “new” sources in an
EPA-listed source category. Section 111(b) applies because it defines “new” sources to include

47

CAA § 111(a)(1); 42 U.S.C. § 7411(a)(1).
Several subsequent EPA actions flesh out this June 18 proposal. EPA issued a Notice of Data Availability, providing
additional information on certain topics raised by commenters on the June 18 proposal—in particular, emission
reduction compliance trajectories created by the interim CO2 reduction goal for 2020 to 2029, aspects of EPA’s
“building blocks” method, and how state-specific CO2 reduction goals are calculated. 79 Fed. Reg. 64543 (October 30,
2014). EPA proposed emission guidelines for CO2 from existing fossil fuel-fired electric generating units located in
Indian country and U.S. territories. 79 Fed. Reg. 65481 (November 4, 2014). And EPA issued a “Notice: additional
information regarding the translation of emission rate-based CO2 goals to mass-based equivalents.” 79 Fed. Reg. 67406
(November 13, 2014).
49
79 Fed. Reg. 34830, 34833 (June 18, 2014).
50
Id.
51
Id.
48

Congressional Research Service

10

Federal Agency Actions Following the Supreme Court's Climate Change Decision

“modified” sources,”52 while EPA regulations extend performance standards for new sources to
“reconstructed” sources.53 The proposal provides for the covered sources EPA’s determination of
the “best system of emission reduction ... adequately demonstrated”—the operative phrase in the
section 111(b) definition of a performance standard.54 For example, EPA proposes that the “best
system of emission reduction ...” for modified fossil fuel-fired boilers and IGCC units is “each
unit’s own best potential performance based on a combination of best operating practices and
equipment upgrades”—that is, a unit-specific emission standard.55 EPA proposes generally that
modified and reconstructed sources subject to a section 111(d) plan (see previous entry for June
18, 2014) at the time of modification or reconstruction will remain subject to the 111(d) plan.56
July 17: EPA proposes revised performance standards for emissions from new municipal
solid waste landfills and an advance notice of proposed rulemaking regarding emissions
from existing municipal solid waste landfills. 79 Fed. Reg. 41796 (proposed revised standard);
79 Fed. Reg. 41772 (advance notice). Landfill emissions are typically composed of 50% methane,
whose potency as a contributor to climate change is 25 times greater than CO2, with the
remainder almost entirely CO2.57 The actions here aim at reducing methane emissions directly or
indirectly.
August 7: Council on Environmental Quality denies petition requesting it to amend its
NEPA regulations and issue guidance.58 A 2008 petition requested CEQ to amend its NEPA
regulations to require explicitly that climate change be addressed in NEPA documents, and issue
guidance clarifying how federal agencies could best integrate climate analyses into their NEPA
processes.59 As reasons for denying the petition, CEQ said that revising the regulations is
unnecessary “because they already encompass consideration of climate effects” and that it is
currently considering how to proceed in light of comments received on its draft guidance (see
“February 18, 2010”).60
November 4: EPA proposes emission guidelines for CO2 emissions from existing fossil fuelfired electric generating units in Indian country and U.S. territories. 79 Fed. Reg. 65482.
This proposed rulemaking supplements the agency’s June 18, 2014 proposed guidelines. EPA also
requests comment on authorizing jurisdictions (including states, territories, and areas of Indian
country) without existing fossil fuel-fired EGUs subject to the June 18-proposed emission
guidelines to partner with jurisdictions having such EGUs.

52

CAA § 111(a)(2); 42 U.S.C. § 7411(a)(2). A “modified” source constitutes a “new” source, and thus falls under
section 111 new source performance standards, only if the modification was commenced after EPA’s proposal of a new
source performance standard for the source category of the modified source. Id.
53
Reading together 40 C.F.R. § 60.15(a) and the definition of “affected facility” in 40 C.F.R. § 60.2.
54
79 Fed. Reg. 34960, 34962 (June 18, 2014) (Table 1).
55
Id.
56
Id. at 34963.
57
79 Fed. Reg. 41772, 41774 (July 17, 2014).
58
Letter from Michael J. Boots, Acting Chair, White House Council on Environmental Quality, to International Center
for Technology Assessment et al. (August 7, 2014). Not posted on CEQ website; copy on file with author.
59
International Center for Technology Assessment, Petition Requesting that the Council on Environmental Quality
Amend its Regulations to Clarify that Climate Change Analyses be Included in Environmental Review Documents
(February 28, 2008). Not posted on CEQ website, but a copy is on file with that agency.
60
Letter from Michael J. Boots, supra note 58, at 2.

Congressional Research Service

11

Federal Agency Actions Following the Supreme Court's Climate Change Decision

November 13: EPA issues notice providing additional information on translating emissionrate-based state CO2 reduction goals to mass-based equivalents. 79 Fed. Reg. 67406. This
notice supplements EPA-proposed guidelines on June 18, 2014 and November 4, 2014.
December 24: Council on Environmental Quality issues revised draft guidance. 79 Fed. Reg.
77802. See “August 7, 2014” for background. As asserted in the revised draft guidance, its
purpose is “to provide Federal agencies direction on when and how to consider the effects of
greenhouse gas (GHG) emissions and climate change in their evaluation of all proposed Federal
actions in accordance with [NEPA and CEQ regulations].” Such consideration should include
both the effects of the proposed action on climate change, and the effects of climate change on the
environmental effects of the proposed action. The projected quantity of GHG emissions from the
proposed project need not be disclosed if less than 25,000 tons of CO2 equivalent annually, unless
quantification below that level is easily accomplished.

2015
March 31: Department of State submits to the Secretariat of the United Nations Framework
Convention on Climate Change the United States’ intended contribution to achieving the
Convention’s objective.61 Article II of the Convention62 calls for stabilizing GHG concentrations
in the atmosphere at a level that would prevent dangerous anthropogenic interference with world
climate. Toward this end, the United States asserts in this submission that it intends to reduce
aggregate GHG emissions by 26%-28% below its 2005 level achieve by 2025, and to make best
efforts to reduce its emissions by 28%.

61
62

Available at http://www4.unfccc.int/submissions/indc/Submission%20Pages/submissions.aspx.
1771 U.N.T.S. 107 (May 9, 1992).

Congressional Research Service

12

Federal Agency Actions Following the Supreme Court's Climate Change Decision

Appendix. Table of Acronyms
Acronym
BACT

Best available control technology. This is the pollution control standard for new “major
emitting facilities” and “major modifications” of existing facilities in PSD areas. BACT is defined
in Clean Air Act section 169(3).

CAA

Clean Air Act. Codified at 42 U.S.C. §§ 7401-7671q.

CAFE

Corporate average fuel economy. This report uses “CAFE standards” and “fuel economy
standards” synonymously.

CEQ

Council on Environmental Quality, the agency charged with monitoring executive branch
implementation of the National Environmental Policy Act. 42 U.S.C. §§ 4342, 4344.

EGU

Electric generating unit

EPA

Environmental Protection Agency

GHG

Greenhouse gas

IGCC

Integrated gasification combined cycle

NEPA

National Environmental Policy Act. 42 U.S.C. § 4321 et seq. NEPA requires federal agencies to
prepare environmental impact statements for proposed “major federal actions significantly
affecting the quality of the human environment.” Id. at § 4332(2)(C).

NHTSA

National Highway Traffic Safety Administration

NSPS

New source performance standards. These apply to any stationary source of emissions the
construction or modification of which is begun after the NSPS is proposed. Defined in Clean
Air Act section 111(a)(1).

PSD

Prevention of significant deterioration. Under the Clean Air Act, PSD areas are regions where
the ambient concentration of a pollutant is below (cleaner than) the National Ambient Air
Quality Standard for that pollutant, triggering the act’s program for “preventing significant
deterioration” of that air quality. The PSD program also covers areas designated as
unclassifiable on the basis of available information as to whether the primary or secondary
National Ambient Air Quality Standards for the pollutant are met. See 42 U.S.C. §§ 7470-7492.

SEC

Securities and Exchange Commission

SIP

State implementation plan. Clean Air Act section 110(a)(1) requires each state to submit a SIP
to EPA to achieve each National Ambient Air Quality Standard within that state. The state has
discretion in imposing emission limits on stationary sources within the state as long as the
National Ambient Air Quality Standard is achieved.

Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

Congressional Research Service

13

EveryCRSReport.com
The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the
Library of Congress, charged with providing the United States Congress non-partisan advice on
issues that may come before Congress.
EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The
reports are not classified, and Members of Congress routinely make individual reports available to
the public.
Prior to our republication, we redacted names, phone numbers and email addresses of analysts
who produced the reports. We also added this page to the report. We have not intentionally made
any other changes to any report published on EveryCRSReport.com.
CRS reports, as a work of the United States government, are not subject to copyright protection in
the United States. Any CRS report may be reproduced and distributed in its entirety without
permission from CRS. However, as a CRS report may include copyrighted images or material from a
third party, you may need to obtain permission of the copyright holder if you wish to copy or
otherwise use copyrighted material.
Information in a CRS report should not be relied upon for purposes other than public
understanding of information that has been provided by CRS to members of Congress in
connection with CRS' institutional role.
EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim
copyright on any CRS report we have republished.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41103. Public record. Not legal advice.