Governors' Wind Energy Coalition

Two lawyers who have already argued one major Supreme Court environmental case this term will return to the high court later this month in a landmark case challenging U.S. EPA’s program for cracking down on greenhouse gas emissions to address global warming.

Peter Keisler of Sidley Austin LLP will argue on behalf of industry groups that contend EPA overreached when it required stationary sources to obtain Prevention of Significant Deterioration, or PSD, permits for greenhouse gases before beginning construction.

And Texas Solicitor General Jonathan Mitchell will represent states that have also asked the court to overturn EPA’s regulations.

Both Keisler and Mitchell appeared at the Supreme Court in December arguing against EPA’s air program for pollution that drifts across state lines.

The greenhouse gas case centers on EPA’s PSD permits, which require facilities to limit emissions of pollutants or install pollution controls. EPA contends that the inclusion of greenhouse gases in the program was triggered under the Clean Air Act once the agency began regulating greenhouse gases from motor vehicles in 2011 (Greenwire, Feb. 11).

Court watchers were closely observing who would argue the case on behalf of industry because of the wide-ranging interests involved in the case. Keisler, who filed the American Chemistry Council’s original petition to the court, was always seen as a front-runner but will be faced with the tricky issue of representing interests that have presented divergent arguments in their court briefs (Greenwire, Oct. 16, 2013).

Keisler has argued four cases at the Supreme Court previously. He represented industry earlier in December in the cross-state case, arguing that EPA’s Cross-State Air Pollution Rule, or CSAPR, was flawed because it focused on the cost of reducing emissions

Mitchell also argued that case, again representing Texas and other states.

A lower court threw out EPA’s rule, but the agency and environmental groups asked the Supreme Court to review the ruling.

The justices appeared receptive to some of the agency’s arguments, and a decision in the case is expected by June.

Keisler is a former acting attorney general from the George W. Bush administration, and Bush nominated him to an influential federal appellate court in 2006 only to see his candidacy blocked by Senate Democrats.

In addition to the cross-state litigation, Keisler has argued other environmental cases at the Supreme Court. In 2011, he argued and won a case involving whether states and land trusts can sue utilities to reduce greenhouse gas emissions because they are a public nuisance under federal common law.

Keisler won in a decision that held that the Clean Air Act and EPA regulations displace state laws for addressing carbon dioxide pollution (Greenwire, June 20, 2011).