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

Robert Meltz
Legislative Attorney

On April 2, 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 saying the agency lacked 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 in the wake of 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 agency’s standards for GHG emissions from new motor vehicles; its interpretation of “pollutants subject to regulation,” the CAA trigger for requiring best available control technology (BACT) for such pollutants in “prevention of significant deterioration” areas; its guidance for determining BACT for GHG emissions; the “tailoring rule” (limiting the stationary sources that initially will have to install BACT and obtain CAA Title V permits based on their GHG emissions); and settlements of litigation seeking to compel new source performance standards (NSPSs) for GHG emissions from electric power plants and petroleum refineries. A few agency actions were included solely because of their relevance to climate change and their post-Massachusetts occurrence—for example, 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, and EPA’s monitoring rule for GHG emissions.

More analytical treatment of the government actions in this report may be found in CRS Report RL32764, Climate Change Litigation: A Survey, by Robert Meltz; CRS Report R40984, Legal Consequences of EPA’s Endangerment Finding for New Motor Vehicle Greenhouse Gas Emissions, by Robert Meltz; CRS Report RS22665, The Supreme Court’s Climate Change Decision: Massachusetts v. EPA, by Robert Meltz; CRS Report R40585, Climate Change: Potential Regulation of Stationary Greenhouse Gas Sources Under the Clean Air Act, by Larry Parker and James E. McCarthy; CRS Report R40506, Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources, by James E. McCarthy and Brent D. Yacobucci; and CRS Report R40166, Automobile and Light Truck Fuel Economy: The CAFE Standards, by Brent D. Yacobucci.


Date of Report: July 6, 2012
Number of Pages: 13
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The Supreme Court Agrees to Decide Whether Logging Road Runoff, When Channeled, Requires a Clean Water Act Permit

Robert Meltz
Legislative Attorney

Claudia Copeland
Specialist in Resources and Environmental Policy

U.S. forests are criss-crossed by thousands of miles of logging roads. When it rains or snow melts, runoff from these roads can be environmentally harmful, so how to address this runoff under the Clean Water Act (CWA) has long been an issue. On June 25, 2012, in Decker v. Northwest Environmental Defense Center, the Supreme Court agreed to review a Ninth Circuit decision on one aspect of this issue. The Ninth Circuit held that where such runoff is collected in ditches, culverts, or other channels before being discharged into waters covered by the CWA, the discharge, being from a “point source,” requires a permit under the act. Until this decision, logging road runoff had been viewed as nonpoint source pollution, subject only to a requirement of best management practices.

Discharges from point sources into federal jurisdictional waters generally require a CWA permit. The Ninth Circuit rejected EPA’s view that its 1976 Silvicultural Rule means that logging road runoff is not a silvicultural point source even when channeled. Further, the court viewed EPA regulations implementing the 1987 stormwater amendments to the CWA as a separate ground for requiring discharge permits.

In the Supreme Court, petitioners—Oregon state officials and timber companies—argue that the decision displaces the longstanding regulatory scheme based on the view that stormwater runoff from logging roads is nonpoint source pollution. In an amicus brief, the United States asserted, to no avail, that the case did not warrant Supreme Court review because Congress and EPA have already taken steps to address concerns that requiring permits would impose unacceptable burdens on timber companies and regulators (see below).

Silvicultural activities are a known cause of water quality impairment in U.S. waters, with impacts such as increasing loading of sediment and chemical pollution. According to EPA, these impacts can result from improperly designed or maintained forest roads, but where they occur, the majority may be attributed to a relatively small subset of forest roads.

The challenge for EPA, should the Supreme Court affirm the Ninth Circuit, will be to develop a mechanism to manage the very large number of logging roads that could become subject to permitting—potentially hundreds of thousands, or even millions, according to timber industry amici. After the Ninth Circuit decision, it was initially presumed that EPA would develop a general permit system. This has been the agency’s practice for more than two decades as new categories of dischargers have become subject to CWA permitting, through statutory or regulatory modification or judicial decisions. Proponents note that general permits allow the permitting authority to provide timely permit coverage and to allocate resources efficiently.

Despite these initial expectations, EPA is not developing a general permit in this instance. Instead, EPA is proposing to focus on those forest roads with stormwater discharges that cause or contribute to water quality impairment. EPA intends by September 30 to revise its rules to specify that stormwater discharges from logging roads are not subject to current stormwater rules. The agency then will consider regulatory and non-regulatory approaches and determine which forest road discharges, if any, should be regulated. Whether EPA will adjust these efforts while the Supreme Court reviews the ruling is unknown for now. Congressional interest in the Ninth Circuit ruling has been strong as well. Congress enacted a measure that temporarily bars EPA from requiring a permit for stormwater runoff associated with silvicultural activities, and bills that would permanently exempt such activities have been introduced (H.R. 2541 and S. 1369).


Date of Report: July 6, 2012
Number of Pages: 15
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EPA’s Proposed Vessel General Permits: Background and Issues

Claudia Copeland
Specialist in Resources and Environmental Policy

In November 2011 the Environmental Protection Agency (EPA) proposed two Clean Water Act (CWA) permits to regulate certain types of discharges from vessels into U.S. waters. The proposed permits would replace a single Vessel General Permit (VGP) issued in 2008 that is due to expire in December 2013. As proposed, the permits would apply to approximately 71,000 large domestic and foreign vessels and perhaps as many as 138,000 small vessels. This universe of regulated entities is diverse as well as large, consisting of tankers, freighters, barges, cruise ships and other passenger vessels, and commercial fishing vessels. Their regulated discharges are similarly diverse, including among other pollutants aquatic nuisance species (ANS), nutrients, pathogens, oil and grease, metals, and toxic chemical compounds that can have a broad array of effects on aquatic species and human health, many of which can be harmful.

EPA has proposed two draft permits, one for large vessels to replace the 2008 VGP (draft VGP), and one for smaller vessels that currently are covered by a congressionally enacted temporary moratorium (draft sVGP). Public comments on the draft permits were to be submitted by February 21, 2012. EPA expects to take final action by November 2012. By proposing them well in advance of the VGP’s expiration, EPA intends to provide ample time for the regulated community to prepare for the application of new requirements.

The CWA requires that all regulated discharges must meet effluent limitations representing applicable levels of technology-based control. The draft permits largely retain the current permit’s approach of relying on best management practices to control most discharges, because EPA concluded that it is infeasible to develop numeric effluent limits for most controlled discharges. However, the draft VGP for larger vessels includes for the first time numeric ballast water discharge limits, which are consistent with standards in a March 2012 Coast Guard rule and an international convention.

The principal benefits of the permits will be reduced risk of introducing ANS into U.S. waters and enhanced environmental quality resulting from reduced pollutant discharges, but the magnitude of benefits is not calculable, according to EPA. The agency acknowledged significant uncertainty about several assumptions affecting estimated costs of the permits, including the types and extent of discharge control practices currently implemented and the number of vessels expected to implement new practices.

EPA’s proposal raises two key issues. One concerns inclusion of specific numeric ballast water discharge limits in the draft VGP. At issue has been whether EPA would propose more stringent numeric limits, as some environmental groups have favored and a few states have already adopted. A second issue concerns the role of states in regulating vessel discharges.

Congressional interest in this topic has been evident for some time, as reflected in two bills enacted in 2008 to exempt certain vessels from a CWA permit requirement, thus restricting the population of vessels subject to the current VGP. Similar interest is evident in the 112th Congress. A Coast Guard reauthorization bill passed by the House in November 2011 (H.R. 2838) includes provisions to establish a uniform national standard for ballast water discharges, which would supersede EPA and Coast Guard ballast water management requirements, void the VGP, and supersede existing state standards or permits for any discharge incidental to the normal operation of a commercial vessel. Counterpart Senate legislation (S. 1665) has no similar provisions.


Date of Report: June 18, 2012
Number of Pages: 20
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Cooling Water Intake Structures: Summary of EPA’s Proposed Rule

Claudia Copeland
Specialist in Resources and Environmental Policy

Thermoelectric generating plants and manufacturing facilities withdraw large volumes of water for production and, especially, to absorb heat from their industrial processes. Water withdrawals by power producers and manufacturers represent more than one-half of water withdrawn daily for various uses in the United States. Although water withdrawal is a necessity for these facilities, it also presents special problems for aquatic resources. In particular, the process of drawing surface water into the plant through cooling water intake structures (CWIS) can simultaneously pull in fish, shellfish, and tiny organisms, injuring or killing them. Congress enacted Section 316(b) of the Clean Water Act (CWA) specifically to address CWIS.

Regulatory efforts by the Environmental Protection Agency (EPA) to implement Section 316(b) have a long and complicated history over 35 years, including legal challenges at every step by industry groups and environmental advocates. Currently most new facilities are regulated under rules issued in 2001, while rules for existing facilities were challenged and remanded to EPA for revisions. In response to the remands, in March 2011 EPA proposed national requirements affecting approximately 1,150 existing electric powerplants and manufacturing facilities. EPA is under a court-ordered schedule to issue a final CWIS rule by July 27, 2012. Even before release, the proposed regulations were highly controversial among stakeholders and some Members of Congress. The issue for Congress has been whether a stringent and costly environmental mandate could jeopardize reliability of electricity supply in the United States. Many in industry feared, while environmental groups hoped, that EPA would require installation of technology called closed-cycle cooling that most effectively minimizes the adverse environmental impacts of CWIS, but also is the most costly technology option.

The EPA proposal declined to mandate closed-cycle cooling universally and instead favors a less costly, more flexible regulatory option. EPA’s recommended approach would essentially codify current CWIS permitting procedures for existing facilities, which are based on site-specific determinations and have been in place administratively for some time because of legal challenges to previous rules. EPA acknowledges that closed-cycle systems reduce the adverse effects of CWIS to a greater extent than other technologies, but in the proposed rule it rejected closed-cycle cooling as a uniform requirement at existing facilities. The agency based that conclusion on four factors: additional energy needed by electricity and manufacturing facilities to operate cooling equipment and adverse consequences to reliability of energy delivery (i.e., energy penalty), additional air pollutants that would be emitted because fossil-fueled facilities would need to burn more fuel as compensation for the energy penalty, land availability concerns in some locations, and limited remaining useful life of some facilities such that retrofit costs would not be justified.

Not surprisingly, stakeholder groups viewed the proposal differently. Environmental groups endorsed the parts of the rule to establish nationally uniform requirements, but criticized those allowing for site-specific determinations. Industry groups urged EPA to provide greater flexibility that would be more cost-effective. State permitting authorities were divided on modifying the rule to be more flexible. In June 2012, EPA said it is considering alternatives that reflect some recommendations of industry and utility groups and is asking for more public comment on these options. Whether the agency will be able to meet the current court-ordered schedule to issue a final rule by July 27 is uncertain.


Date of Report: June 12, 2012
Number of Pages: 30
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Canadian Oil Sands: Life-Cycle Assessments of Greenhouse Gas Emissions

Richard K. Lattanzio
Analyst in Environmental Policy

Canadian Oil Sands and Climate Change 

Recent congressional interest in U.S. energy policy has focused in part on ways through which the United States could secure more economical and reliable crude oil resources both domestically and internationally. Many forecasters identify petroleum refined from Canadian oil sands as one possible solution. Increased petroleum production from Canadian oil sands, however, is not without controversy, as many have expressed concern over the potential environmental impacts. These impacts may include emissions of greenhouse gases (GHG) during extraction and processing. A number of key studies in recent literature have expressed findings that the GHG emissions intensities of Canadian oil sands crudes may be higher than those of other crudes imported, refined, and consumed in the United States. The studies identify two main reasons for the increase: (1) oil sands are heavier and more viscous than lighter crude oil types on average, and thus require more energy- and resource-intensive activities to extract; and (2) oil sands are compositionally deficient in hydrogen, and have a higher carbon, sulfur, and heavy metal content than lighter crude oil types on average, and thus require more processing to yield consumable fuels by U.S. standards. 

Selected Findings from the Primary Published Studies 

CRS surveyed the published literature, including the U.S. Department of State-commissioned study in the Environmental Impact Statement for the Keystone XL pipeline project. The primary literature reveals the following:

• Canadian oil sands crudes are on average somewhat more GHG emission-intensive than the crudes they would displace in U.S. refineries, as Well-to-Wheel GHG emissions are, on average, 14%-20% higher for Canadian oil sands crude than for the weighted average of transportation fuels sold or distributed in the United States; 
• discounting the final consumption phase of the life-cycle assessment (which can contribute up to 70%-80% of Well-to-Wheel emissions), Well-to-Tank (i.e., “production”) GHG emissions are, on average, 72%-111% higher for Canadian oil sands crude than for the weighted average of transportation fuels sold or distributed in the United States; 
• compared to selected imports, Canadian oil sands crudes range from 9% to 19% more emission-intensive than Middle Eastern Sour, 5% to 13% more emission-intensive than Mexican Maya, and 2% to 18% more emission-intensive than various Venezuelan crudes, on a Well-to-Wheel basis; 
• the estimated effect of the proposed Keystone XL pipeline on the U.S. GHG footprint would be an increase of 3 million to 21 million metric tons of GHG emissions annually (equal to the annual GHG emissions from the combustion of fuels in approximately 588,000 to 4,061,000 passenger vehicles); and 
• the estimated effect of the Keystone XL pipeline on global GHG emissions remains uncertain, as some speculate that its construction would encourage an expansion of oil sands development, while others suggest that the project would not substantially influence either the rate or magnitude of oil extraction activities in Canada or the overall volume of crude oil transported to and refined in the United States. 

Scope and Purpose of This Report 

After discussing the basic methodology of life-cycle assessments and examining the choice of boundaries, design features, and input assumptions, this report compares several of the publicly available assessments of life-cycle emissions data for Canadian oil sands crudes against each other and against those of other global reference crudes. Further, as congressional concern over the environmental impacts of Canadian oil sands production may encompass both a broad understanding of the global resource as well as a specific assessment of the proposed Keystone XL pipeline, the report surveys both the general scientific literature as well as the individual findings of the State Department’s Keystone XL Project Environmental Impact Statement. Finally, as life-cycle assessments have become an influential—albeit developing—methodology for collecting, analyzing, and comparing GHG emissions, the report concludes with a discussion of some tools for policymakers who are interested in using these assessments to investigate the potential impacts of U.S. energy policy choices on the environment.


Date of Report: June 18, 2012
Number of Pages: 31
Order Number: R42537
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