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Swing Vote: Supreme Court Hears Sides In EPA Greenhouse Gas Regulations Case

By Ari Phillips

"Swing Vote: Supreme Court Hears Sides In EPA Greenhouse Gas Regulations Case"

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On Monday the Supreme Court heard 90 minutes of argument over the case Utility Air Regulatory Group v. EPA regarding the way in which the EPA goes about regulating greenhouse gas emissions. At stake is the legal jurisdiction of the Clean Air Act and the way it is used to enforce GHG permitting. Private industry opponents of EPA’s climate regulations, state governments led by Texas Solicitor General Jonathan Mitchell, and the EPA, represented by Justice Department attorney Donald Verrilli, Jr., all made their case, which revolves around arguments on whether the EPA’s GHG standards for vehicles necessarily trigger similar permitting requirements for large stationary sources under the Clean Air Act.

The court is not revisiting the EPA’s overall decision to regulate greenhouse gases, or the finding that they represent a threat to public health. In a weekend editorial, the New York Times wrote that, “the optimal solution would be for Congress to update the Clean Air Act, but that isn’t going to happen anytime soon. In the meantime, the EPA is well within its authority to interpret the law as broadly as it has. It was written that way four decades ago, and the Supreme Court has repeatedly and properly construed the agency’s powers broadly. This time is no different.”

The case will help determine what options the EPA has in regulating GHGs under the Clean Air Act. If the Court finds that the EPA’s current permitting process for fixed sources is beyond the bounds of the law then the agency will have to look to other options, such as a national standard, that would likely prove more costly and cumbersome. Currently the agency is using a “Tailoring Rule” that allows the EPA the require permits only for sources whose GHG emissions exceed 75,000 or 100,000 tons per year rather than the CAA statutory threshold of 100 and 250 tons per year. By employing the tailoring rule the EPA is able to reduce regulatory burden while still requiring permits for sources responsible for 86 percent of GHG emissions from stationary emitters.

The EPA seemed close to garnering the five justices needed to prevail in the case, according to an analysis of the morning’s proceedings by Lyle Denniston, a reporter for SCOTUSblog. “As is so often the case when the Court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt,” wrote Denniston.

Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor were all evidently almost certainly in favor of the EPAs initiative to regulate GHGs, according to Denniston, with Justice Antonin Scalia and Justice Samuel A. Alito providing the most skepticism.

The industry’s lawyer, Washington attorney Peter D. Keisler, and Texas Solicitor General Jonathan F. Mitchell had a tough time holding up against Justices defending the EPA’s actions, according to Dennison.

“The attempt of industry to frame this case as a power grab by EPA fell flat today before the Supreme Court,” Constitutional Accountability Center President Doug Kendall said in a statement reacting to the hearing. “While the nuances of the Court’s opinion remain to be determined, it is clear that the broader objectives of industry to use this case as a frontal assault on EPA’s ability to use the Clean Air Act to regulate global warming will be rejected.”

New York State Attorney General Eric T. Schneiderman led a coalition of 15 states and New York City in filing a brief with the Supreme Court in the case. The brief argued that the “EPA’s finding that greenhouse gases endanger public health and welfare and its subsequent regulation of those pollutants from motor vehicles triggered the requirement for major stationary sources to obtain permits to limit their emission of greenhouse gases.”

“The economic and environmental dangers posed by runaway climate change pollution are increasingly apparent in New York and across our nation,” Schneiderman said in a statement today. “Since 2011, EPA regulations have allowed states to achieve cost-effective reductions in the emission of climate change pollution from major stationary sources, just as they have done for many years for other air pollutants. These regulations are vital to implementation of common-sense solutions to climate change, at the state and federal levels, and I urge the Supreme Court to uphold them.”

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