Bloomberg News

EPA’s Greenhouse-Gas Rules Draw U.S. Supreme Court Scrutiny (2)

October 15, 2013

The U.S. Supreme Court said it will scrutinize the Environmental Protection Agency’s first-ever push to curb greenhouse-gas emissions, agreeing to hear appeals from industry trade groups and Republican-led states.

The justices today said they will decide whether the EPA was justified in setting up new permit requirements for stationary sources of pollution, including power plants and factories.

The Obama administration is seeking to reduce carbon emissions it says threaten public health and contribute to climate change. Dozens of trade groups, companies, public policy organizations and states pressed nine separate Supreme Court appeals, six of which the court agreed to hear.

The EPA is erecting “the costliest, farthest-reaching and most intrusive regulatory apparatus in the history of the American administrative state,” the U.S. Chamber of Commerce argued in an appeal joined by Alaska and the American Farm Bureau Federation.

The justices said they won’t review the EPA’s conclusion that carbon emissions endanger public health and the planet, as some of the appeals had urged. The court also refused to revisit its 2007 decision ordering the EPA to consider regulating greenhouse-gas emissions. The court rejected three appeals that raised those issues.

Environmental Advocates

Environmental advocates hailed that aspect of the court’s action today. They said the high court case would be a narrow one, focusing on one aspect of the Clean Air Act, and wouldn’t undermine other EPA efforts to limit carbon emissions.

“Today’s orders by the U.S. Supreme Court make it abundantly clear, once and for all, that EPA has both the legal authority and the responsibility to address climate change and the carbon pollution that causes it,” Environmental Defense Fund General Counsel Vickie Patton said in an e-mailed statement.

The Obama administration urged the Supreme Court to reject the case entirely, saying the lower court ruling was a straightforward application of the Clean Air Act, in keeping with the deference that judges generally afford to federal administrative agencies. The clash centers on interrelated rules issued by the EPA in 2009 and 2010.

The opponents’ “policy concerns with the implementation of an intentionally broad and precautionary statutory scheme are properly addressed to Congress,” said U.S. Solicitor General Donald Verrilli, the administration’s top courtroom lawyer.

17 States

Environmental advocates and a New York-led group of 17 states joined the administration in opposing Supreme Court review. A federal appeals court upheld the EPA’s rules last year.

The court will hear arguments early next year and rule by July.

The central question the court will consider is whether the EPA properly used its 2010 rule governing auto emissions as a basis to set permit standards for stationary sources as well.

The Clean Air Act says the permit requirements apply to stationary sources emitting “any air pollutant.” The EPA says those requirements were automatically triggered once the agency found that greenhouse gases were enough of a threat to warrant vehicle regulations.

Opponents contend the EPA’s plan for phasing in stationary-source requirements proves that the agency’s approach is incompatible with the language of the Clean Air Act.

‘Absurd Results’

The law generally requires a permit for sources that exceed either 100 or 250 tons per year of a particular pollutant. The EPA concluded that a literal application of that threshold for greenhouse gases would lead to “absurd results,” potentially covering millions of commercial and residential sources. Greenhouse gases are emitted in far greater volumes than other pollutants.

To address that issue, the EPA decided to relax the threshold for greenhouse gases, at least at first.

The agency has “relied on the costs and absurdities created by its own interpretation of the Clean Air Act to grant itself a continuing license to create and revise the statutory scheme without regard to even the clearest congressional directives,” industry groups led by the American Chemistry Council argued in papers supporting high court review.

The Obama administration points to a passage in the 2007 opinion saying Congress wanted the EPA to have flexibility in administering the Clean Air Act.

Changing Circumstances

While lawmakers “might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete,” the majority said in that 5-4 ruling.

The case doesn’t directly affect proposed limits issued by the EPA last month to cap carbon emissions from new power plants, though the court’s reasoning may complicate the agency’s efforts.

The cases the court will hear are Utility Air Regulatory Group v. EPA, 12-1146; American Chemistry Council v. EPA, 12-1248; Energy-Intensive Manufacturers v. EPA, 12-1254; Southeastern Legal Foundation v. EPA, 12-1268; Texas v. EPA, 12-1269; and Chamber of Commerce v. EPA, 12-1272.

The cases rejected are Virginia v. EPA, 12-1152; Pacific Legal Foundation v. EPA, 12-1153; and Coalition for Responsible Regulation v. EPA, 12-1253.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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