EPA BACT Up

Ever since the United States Supreme Court decided Massachusetts v. Environmental Protection Agency ("EPA"), the EPA has been crafting possible strategies for regulating emission of greenhouse gases as pollutants.  On June 23, 2014, the Supremes released its decision in Utility Air Regulatory Group v. EPA et al., in which it acquiesced to an indirect, but potentially highly-effective, regulatory scheme.  Specifically, the Court held that the Clean Air Act (42 U.S.C. §101) grants EPA authority "to require sources that would need permits based on their emission of conventional pollutants to comply with BACT ["best available control technology"] for greenhouse gases."  In a minor setback for the agency, the Court refused to allow the EPA to shoehorn greenhouse gases and some of their specific sources into existing statutory categories the Court interpreted as incongruous.  Nevertheless, this decision is a major victory for President Obama's administrative agency-based strategy to regulate the reduction of greenhouse gas emissions.