Supreme Court narrows rules on curbing greenhouse gases

McClatchy Washington BureauJune 23, 2014 


Emissions from the smoke stacks at a coal-burning power plant


— A fractured Supreme Court on Monday limited, but didn’t eliminate, the Environmental Protection Agency’s power to regulate certain greenhouse-gas emissions.

In a 5-4 decision that was both complex and restrained, the court declared that the EPA can’t require stationary polluters to get permits solely because they might emit greenhouse gases. This would cover too many small greenhouse gas sources such as schools and churches, the majority reasoned.

“We think it beyond reasonable debate that requiring permits for sources based solely on their emissions of greenhouse gases . . . would be incompatible with the substance of Congress’ regulatory scheme,” Justice Antonin Scalia wrote for the majority.

At the same time, the court agreed that for large polluters that already are regulated for non-greenhouse gas emissions, the EPA can require the use of so-called best available control technology.

“Applying BACT to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to convince us that EPA’s interpretation is unreasonable,” Scalia wrote.

Scalia stressed that the ruling Monday would leave unregulated only a small percentage of additional greenhouse-gas polluters. By some estimates, the EPA will still be able to regulate 83 percent of stationary source greenhouse-gas emissions. Had the agency won, it would have been able to regulate 86 percent of the emissions.

“You’re talking about a relatively small slice of stationary source emissions,” noted environmental attorney Sean H. Donahue, who argued the case before a lower appeals court.

The ruling doesn’t affect other Obama administration proposals to control greenhouse gases under different Clean Air Act provisions.

Significantly, the court reaffirmed by 7-2 an earlier decision concerning the EPA’s underlying power to regulate greenhouse gasses. The overall end result pleased business but also relieved environmentalists, who’d feared a more sweeping loss. The EPA welcomed the ruling.

“It bears mentioning that EPA is getting almost everything it wanted it in this case,” Scalia said from the bench Monday.

American Petroleum Institute General Counsel Harry Ng praised the decision as “a stark reminder that the EPA’s power is not unlimited,” while Missouri Republican Sen. Roy Blunt said “the Supreme Court’s move to limit the EPA’s overreach is a step in the right direction.”

More than half of the nation’s states took sides in the dispute over federal authority to regulate stationary greenhouse-gas emissions. Conservative lawmakers such as Senate Minority Leader Mitch McConnell, R-Ky., faced off against Southern California air-pollution managers.

The decision consolidated six lawsuits that challenged EPA rules. The suits boiled down to one central question: Did the EPA overstep its bounds in regulating stationary greenhouse-gas emissions based on an earlier determination that it could regulate such emissions from motor vehicles?

The Supreme Court’s four dissenters said Monday that the EPA had acted reasonably in using its Clean Air Act power.

“The expert agency charged with administering the act . . . has determined that greenhouse gases endanger human health and welfare, and so sensible regulation of industrial emissions of those pollutants is at the core of the purpose behind the act,” Justice Stephen Breyer wrote in dissent.

In 2007, the court held that the Clean Air Act gave the EPA the authority to regulate greenhouse gases, which contribute to global climate change. A hotter planet, in turn, has been linked to worsening ozone pollution, more intense forest fires, increased drought and a host of human respiratory problems, among other things.

Targeting six greenhouse gases, including carbon dioxide and methane, the EPA set tailpipe emission standards for cars and light trucks.

The agency further reasoned that since the six gases were deemed dangerous enough to regulate as tailpipe emissions, they must also fall under the pre-construction permit requirements for stationary emission sources, such as small industrial plants and agricultural facilities.

The Clean Air Act sets 100 or 250 tons per year _ depending on the source _ as the pollutant emissions threshold for when permits are needed. For greenhouse gas emissions, which are emitted from many sources, the EPA changed this to a more lenient 100,000 tons per year.

Keeping the stricter emission-permit standards would have meant that tens if not hundreds of thousands of additional sources would face more regulatory burdens, according to the EPA. In its decision Monday, the court said the agency lacked the authority to rewrite the law even if the intent was to make it more reasonable.

“We reaffirm the core administrative law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate,” Scalia wrote.

Email:; Twitter: @MichaelDoyle10.

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