Supreme Court: EPA can regulate greenhouse gas emissions, with some limits

BY ROBERT BARNES June 23 at 12:41 PM
The Supreme Court on Monday mostly validated the Environmental Protection Agency’s plans to regulate power plant and factory emissions of greenhouse gases blamed for global warming, while imposing some limits on the agency’s reach.
The justices said the EPA could not rewrite specific standards written into the law, but they still handed the Obama administration and environmentalists a big victory by agreeing there was another way for the EPA to carry out its program.
“EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said from the bench, in announcing the decision. “It sought to regulate sources that it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.”
The decision concerns rules separate from the EPA’s proposed more comprehensive plans released earlier this month to cut carbon emissions from existing plants by as much as 25 percent over 15 years.
“Today is a good day for all supporters of clean air and public health and those concerned with creating a better environment for future generations,” the EPA said in a statement.
Perhaps of more value than the specific case, the court reinforced its view that the Clean Air Act gives the agency the ability to regulate greenhouse gases. Sean H. Donahue, who represented environmental agencies in the case, said the decision makes clear that seven of the nine justices hold that view.
“It’s settled law,” he said.
The bottom line that EPA got much of what it wanted contrasted with rhetoric in Scalia’s opinion that suggested a power grab.
He said that emissions of greenhouse gases alone are not enough to trigger EPA enforcement — that would sweep in too many small sources, such as schools, churches and shopping centers, Scalia said.
The EPA agreed with that.
But Scalia said the EPA cannot resolve the problem by simply rewriting the specific standards written into the law. An agency does not have power to “revise clear statutory terms that turn out not to work in practice,” he wrote.
But the majority of the court still found a way for the EPA program to work.
Scalia said the agency can impose the greenhouse gas regulations on facilities that are already regulated under the EPA’s Prevention of Significant Deterioration program. That program requires the facilities to install the best available technology to control emissions from all regulated pollutants.
The court’s liberal justices agreed with that part of the decision, but they would have deferred to EPA’s ability to make the statute work.
Justices Clarence Thomas and Samuel A. Alito Jr. said they disagreed that the agency had clear power to address greenhouse gases.
The EPA was challenged by a number of states, led by Texas, and industry groups and the Chamber of Commerce.
“Today, the Supreme Court largely upheld EPA’s approach to focusing Clean Air Act permits on only the largest stationary sources of greenhouse gases such as power plants, refineries, and other types of industrial facilities,” the EPA said in its statement. “The Supreme Court’s decision is a win for our efforts to reduce carbon pollution because it allows EPA, states and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources.”
The legal battle in part results from the failure of the administration and Congress to find common ground on the issue of global warming.
The court ruled in the 2007 case, Massachusetts v. EPA , that carbon dioxide and other greenhouse gases are pollutants that can be regulated under the Clean Air Act. That case, which was brought by states that said the EPA under President George W. Bush was not doing enough to fight global warming, concerned regulating motor vehicles.
The Obama administration later reasoned that “stationary sources” — factories, power plants and other structures — were also subject to the permitting requirements in certain parts of the act.
A unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed with that view. It said that court precedents made the agency’s readings of its powers “unambiguously correct.”
But the EPA has acknowledged that the permitting thresholds set by the Clean Air Act do not fit well with something like carbon dioxide, which is ubiquitous in the environment. While the law said pollution limits of 100 to 250 tons per year triggered permitting requirements, the EPA had to raise those to 75,000 to 100,000 tons per year for greenhouse gases to identify the facilities most in need of regulation.
The justices in April ruled in EPA’s favor in another challenge, resurrecting a rule targeting air pollution that drifts across state borders, handing the Obama administration a victory on one of its major environmental efforts.
The agency for years, under two administrations, has struggled to carry out a directive under the federal Clean Air Act to protect downwind states from pollution generated in other states, mostly from coal-fired power plants. The EPA’s rules from 2011 were challenged by a coalition of upwind states and industry, which prevailed in lower courts.
But the Supreme Court ruled 6 to 2 that the latest effort could be implemented, with Justice Ruth Bader Ginsburg writing for the majority that the agency must have leeway to confront the “complex challenge” of interstate pollution.

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