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Supreme Court places limits on EPA's greenhouse gas rules for power plants


Supreme Court balances clean air against clean law
By Noah Feldman
2014, Bloomberg News.
In a decision that was a legal defeat for the Obama administration but may well be a practical victory, the U.S. Supreme Court's conservative justices voted 5-4 to block the Environmental Protection Agency from a creative-yet-practical interpretation of the Clean Air Act that would have let the EPA significantly increase its regulation of greenhouse gases.

In an opinion by Justice Antonin Scalia, the conservatives nevertheless threw the EPA a bone, allowing regulation of greenhouse gases from plants that already emitted significant other pollutants. The opinion's official message was that the EPA can't regulate specifically greenhouse-gas polluters unless Congress passes a new law. But in comments from the bench, Scalia said that the EPA was getting "almost everything it wanted," and that it had sought to regulate 86 percent of greenhouse gases and would be able to regulate 83 percent.

The legal and regulatory background is devilishly complicated, so please consider what follows to be a simplification by a nonexpert for readers who are nonexperts as well. In brief, in 2007, in what seemed like a landmark case called Massachusetts v. EPA, Justice Anthony Kennedy joined the court's four then-liberals in holding that the George W. Bush administration's EPA had not only the authority but also the obligation to regulate carbon dioxide and greenhouse gases, which until then had not been treated as "pollutants" under the relevant environmental laws. Environmentalists considered the case a major win for increased regulation that would combat climate change.

Monday, the Supreme Court had to decide whether one of the plans the EPA adopted on the basis of that earlier case satisfied the requirement of the law. The particular program in question had to do with Title I of the Clean Air Act, which concerns major, stationary polluting sources. The way the act was originally written, it gave the EPA authority over stationary sources such as plants that emitted more than 250 tons a year of pollutants into the air. (This is, again, a simplification.)

Once the EPA got authority over greenhouse gases in 2007, however, the 250 tons a year standard no longer made practical sense. It turns out that vast, epic numbers of plants produce more than 250 tons a year of carbon dioxide. Common sense required a higher number. So the EPA picked one: It enacted a rule saying that it would regulate stationary sources that emitted more than 100,000 tons a year of carbon dioxide.

As a matter of regulatory common sense, the EPA's decision was perfectly reasonable. It now had the obligation to regulate greenhouse gases, and it wanted to regulate them sensibly.

As a matter of statutory interpretation, however, the EPA's regulation was extremely iffy. The statue, after all, clearly set 250 tons a year of pollutant as its threshold.

This time around, Kennedy balked at joining the liberals. He voted with Scalia and the conservatives instead. Scalia's opinion acknowledged that the true definition of "air pollutant" is difficult under the Clean Air Act, which uses the term "promiscuously." Yet, Scalia insisted, the EPA could not simply adopt 100,000 tons as its standard when the statute said 250. If it wanted to regulate greenhouse gases under Title I of the act, it would have to go back to Congress and ask for a change. This holding was consistent with Scalia's general philosophy of statutory interpretation, which emphasizes the plain meaning of the text. Nevertheless the opinion did not overturn the 2007 case of Massachusetts v. EPA — because, whatever the four conservatives may have wanted, Kennedy was not going to reverse his prior vote.

Scalia's theory of statutory interpretation did, however, apparently require him to acknowledge that where the EPA already has the authority to regulate stationary sources because they emit more than 250 tons a year of pollutants other than greenhouse gases, the EPA could now regulate greenhouse gases produced by the same polluters. (The opinion called them "anyway sources.") This part of the decision had, Scalia claimed from the bench, the practical effect of giving the EPA real-world win alongside its legal loss.

Justices Samuel Alito and Clarence Thomas wouldn't even go that far, and Alito wrote separately to say that Massachusetts v. EPA was wrong when decided, and was still wrong. As far as he was concerned, Scalia's opinion just showed how wrong the 2007 decision was. "Anyway sources" should not be regulated, either.

The liberals, of course, agreed that the "anyway sources" could be regulated. But they thought the EPA's creative statutory interpretation was fine. Justice Stephen Breyer wrote the dissent on their behalf. His explanation was straightforward, and quoted the great midcentury judge Learned Hand as saying that the judge's job is to ascertain the statute's "underlying purpose," and then ask how reasonable people, "actuated" by the purpose, "would have dealt with it, if it had been presented to them at the time."

Hand was paraphrasing Aristotle, who believed that everything in life has a purpose, or telos — including laws. The point of law is to achieve logical effect and common sense. Thus, the point of the Clean Air Act is to give us clean air.

Scalia and the conservatives disagree: They think that the law is a kind of automatic command and that regulators can't play with it unless its meaning is genuinely ambiguous. The debate is a hugely important one, and has loomed over the Supreme Court term. Monday Scalia's textualism was victorious. Feel the earth getting a little warmer?

— Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books.

MARK SHERMAN, Associated Press

WASHINGTON (AP) — The U.S. Supreme Court on Monday placed limits on the sole Obama administration program already in place to deal with power plant and factory emissions of gases blamed for global warming.

The justices said that the Environmental Protection Agency lacks authority in some cases to force companies to evaluate ways to reduce carbon dioxide emissions. This rule applies when a company needs a permit to expand facilities or build new ones that would increase overall pollution. Carbon dioxide is the chief gas linked to global warming.

The decision does not affect EPA proposals for first-time national standards for new and existing power plants. The most recent proposal aims at a 30 percent reduction in greenhouse gas emissions by 2030, but won't take effect for at least another two years.

The outcome also preserves EPA's authority over facilities that already emit pollutants that the agency regulates other than greenhouse gases. EPA called the decision "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."

Justice Antonin Scalia, writing for the court, said "EPA is getting almost everything it wanted in this case." Scalia said the agency wanted to regulate 86 percent of all greenhouse gases emitted from plants nationwide. The agency will be able to regulate 83 percent of the emissions under the ruling, Scalia said. The court voted 7-2 in this portion of the decision, with Justices Samuel Alito and Clarence Thomas saying they would bar all regulation of greenhouse gases under the permitting program.

EPA said that, as of late March, 166 permits have been issued by state and federal regulators since 2011.

Permits have been issued to power plants, but also to plants that produce chemicals, cement, iron and steel, fertilizer, ceramics and ethanol. Oil refineries and municipal landfills also have obtained greenhouse gas permits since 2011, EPA said.

Under Monday's ruling, EPA can continue to require permits for greenhouse gas emissions for those facilities that already have to obtain permits because they emit other pollutants that EPA has long regulated.

But Scalia, writing for the court's conservatives in the part of the ruling in which the justices split 5-4, said EPA could not require a permit solely on the basis of greenhouse gas emissions.

The program at issue is the first piece of EPA's attempt to reduce carbon output from large sources of pollution.

The utility industry, the U.S. Chamber of Commerce and 13 states led by Texas asked the court to rule that the EPA overstepped its authority by trying to regulate greenhouse gas emissions through the permitting program. The administration failed to get climate change legislation through Congress.

In 2012, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit concluded that the EPA was "unambiguously correct" in using existing federal law to address global warming.

The agency's authority came from the high court's 2007 ruling in Massachusetts v. EPA, which said the Clean Air Act gives EPA power to limit emissions of greenhouse gases from vehicles.

Two years later, with Obama in office, the EPA concluded that the release of carbon dioxide and other heat-trapping gases endangered human health and welfare. The administration used that finding to extend its regulatory reach beyond automobiles and develop national standards for large stationary sources. Of those, electric plants are the largest source of emissions.

When the Supreme Court considered the appeals in October, the justices declined requests to consider overruling the court's 2007 decision, review the EPA's conclusion about the health effects of greenhouse gas emissions or question limits on vehicle emissions.

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