In follow up to my earlier post, here are a couple of additional points.
1) A related but different argument petitioners are making about why the PSD provisions don't apply to the regulation of greenhouse gases is that the application of the provisions would lead to absurd results. The absurd results come about because the definition of "major source" in the PSD statutory language -- 100 tons per year of any air pollutant -- would sweep in a huge number of small sources that Congress never intended to regulate. In order to avoid absurd results, the Court should find that the plain language of the PSD provisions doesn't apply. Stanford Law Professor Michael Wara asked me about this argument in the comments section of my last post.
As I responded to Michael, I don't buy the absurd results argument. Here's why. EPA has faced other circumstances in which statutory language sweeps in a huge number of potentially very small sources. One of those provisions is the definition of "point source" under the Clean Water Act, which includes "any discernible, confined and discreet covenyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissue, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." In 1973 EPA attempted to exempt from this language a number of types of sources in order to keep the number of sources it was regulating to something short of absurd. Among other things, EPA argued that the language of the statute gave it power "to instruct each individual farmer on his farming practices." In NRDC v. Costle, 568 F.2d 1369 (1977), the D.C. Circuit struck down EPA's regulations exempting various sources because the regulations violated the plain language of the Clean Water Act. The court also suggested that EPA could "make full use of its interpretational authority" by using options to minimize its administrative burdens. These options included area-wide regulation and general permits that could be applied to small sources.
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