Tread Carefully With Greenhouse
Slight reprieve from the conservatives on the court? (Photo credit: Wikipedia)The Environmental Protection Agency exceeded its mandate when it tried to rejigger a program that had been designed to regulate conventional pollutants as a way to control greenhouse gas emissions, the U.S. Supreme Court decided today.
The decision in Utility Air Regulation Board vs. EPA involves a relatively obscure section of the sweeping Clean Air Act, but it has broader implications for the Obama administration's efforts to force utilities to switch away from CO2-intensive fuels. By assembling a five-justice majority in favor of restricting the EPA's powers in this area, Justice Antonin Scalia may be placing a roadblock in front of the administration's ambitious new-source rules for power plants.
'It's clear there is a five-justice major on the Supreme Court that is going to be looking very closely at greenhouse-gas regulations going forward,' said Thomas Lorenzen, a partner with Dorsey & Whitney in Washington who until last year was a top lawyer at the Justice Department handling environmental cases. 'EPA is going to have to explain why it makes sense for each individual program covered by the Clean Air Act, why or why not it will regulate GHGs.'
The EPA gained authority to regulate CO2 in the 2007 decision in Massachusetts vs. EPA, which established a very broad definition of 'pollutant' under the Clean Air Act. It was a 5-4 decision with all of the conservative justices but Anthony Kennedy dissenting.
In this case, Kennedy joined the conservatives who rejected the EPA's attempt to dramatically retailor two sections of the law that prescrible programs to control pollution in areas that have already hit their limits. Because the law set the levels of pollutants at 100-250 tons a year, which would sweep even small businesses into the CO2 regs, the EPA raised them to 100,000 tons. That covered the biggest utilities emitting 83% of the CO2 from stationary sources, the agency said.
Scalia couldn't muster the votes to overturn Massachusetts outright, but he was able to trim it considerably by saying that decision doesn't compel the EPA to consider CO2 a pollutant in every setting. The agency had been using a smaller subset of pollutants under its Prevention of Significant Deterioration and Title V permitting programs for years, Scalia, wrote.
It is plain as day that the Act does not envision an elaborate, burdensome permitting process for major emitters of steam, oxygen, or other harmless airborne substances. It takes some cheek for EPA to insist that it cannot possibly give `air pollutant' a reasonable, context-appropriate meaning in the PSD and Title V contexts when it has been doing precisely that for decades.
Only Chief Justice Roberts and Anthony Kennedy joined the Scalia opinion in full. Justices Samuel Alito and Clarence Thomas wrote concurrences and partial dissents under which they said the Clean Air Act is simply incapable of being used to regulate greenhouse gases, because it requires each source to be evaluated and nobody can calculate the impact of reducing CO2 emissions by one power plant on global climate.
The court's liberals, led by Justice Stephen Breyer, also concurred and dissented in part. They agreed that it would be absurd to read the Clean Air Act's definition of 'any' air pollutant as including the relatively small amounts of CO2 emitted by the corner grocery store. But Breyer said Scalia's approach of basically writing CO2 out of the challenged program denies the agency flexibility and 'chips away at our decision in Massachusetts.'
The key thing with today's decision, Lorenzen told me, is 'Kennedy flipped.' When the utility industry challenges the Obama administration's rules on coal-burning power plants, which Lorenzen figures will hit the Supreme Court in about two years, it will have the language in this decision to argue that the EPA doesn't have the authority to hand down regulations with broud, nationwide effects on the economy. While that case will involve another section of the law where there is less prior history of the EPA using narrow definitions for air pollutants, he said, it will still face a tough time getting an expansive program past the conservative majority.
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