Justice Antonin Scalia authored a 5-4 opinion on a major legal climate issue, and the result was mostly a non-event.
On Monday the U.S. Supreme Court ruled that the Environmental Protection Agency had narrowly exceeded its reach under the Clean Air Act in its permitting program to mitigate greenhouse gas emissions. This was the first review of the EPA’s efforts to control greenhouse gas (GHG) emissions since the landmark 2007 Supreme Court decision that gave the agency fundamental authority to regulate GHGs and a 2010 case upholding the EPA’s “Endangerment Finding” that they threaten public health. The decision will not impact the EPA’s recent proposals to implement national carbon standards for new and existing power plants under the Clean Power Plan.
“It reaffirms the regulation of GHGs generally because of the part of the opinion where Scalia allows for regulation once other pollutants trigger it,” Peter Gallagher, director of the Environmental Law Program at the Sierra Club told ThinkProgress of the decision. “It does not effect the big enchilada so to speak, meaning the EPA’s recent Clean Power Plan. It’s a little bit of a non-event, as far as big picture.”
The divided ruling issued by Justice Scalia for the case Utility Air Regulatory Group v. EPA focused on the way the EPA regulates GHGs and the legal jurisdiction of the Clean Air Act in enforcing GHG permitting. In February private industry opponents of EPA’s climate regulations and state governments led by Texas Solicitor General Jonathan Mitchell made their case against the EPA. The arguments revolved around whether the EPA’s GHG standards for vehicles necessarily trigger similar permitting requirements for large stationary sources under the Clean Air Act.
The EPA argued that it must include carbon dioxide in a pre-construction permitting program. The court found that the EPA cannot require these permits based solely on GHG emissions, but that emission sources already in need of the permits for other pollutants should have to use best available control technology (BACT) to limit GHG emissions. This means that large stationary sources such as big power plants will have to control GHG emissions when they control other emissions required under the National Ambient Air Quality Standards such as sulfur dioxide, particulate matter, carbon monoxide, lead, and nitrogen dioxide. Sources only emitting large amounts of GHGs will not become subject to EPA’s regulatory authority under these provisions.
In summarizing the decision, Justice Scalia said the “E.P.A. is getting almost everything it wanted in this case. It sought to regulate sources it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.”
Jody Freeman, Director of the Environmental Law Program at Harvard told ThinkProgress she thought landfills may fall into the category of the three percent of large GHG emitters that won’t become subject to the regulations because of the decision, but that “most big industrial sources like power plants and refineries will produce significant amounts of conventional pollutants to get them over the threshold, and so will also have to control their GHGs.”
Gallagher said he thought a certain part of the natural gas processing sector and some types of chemical manufacturers and cement producers that don’t use fossil fuel combustion might not have triggered the pollution controls and under the new ruling wouldn’t have to limit GHG emissions.
Jessica Olson, senior associate at Ayres Law Group told ThinkProgress that the part of EPA’s regulations requiring a PSD permit solely on the basis of GHG emissions would have applied on a plant-by-plant basis. “By contrast, EPA’s carbon pollution standards for power plants will allow states to design cost-effective, market-based solutions that will be a win-win for the environment and industry.”
Constitutional Accountability Center President Doug Kendall responded to the Court’s decision as a victory, saying in a statement to ThinkProgress that the EPA’s challengers wanted the court to review far more than they did in the case and were hoping for a more sweeping ruling preventing EPA regulation.
“Today,” said CAC President Doug Kendall, “a 7-2 majority of the Court ruled that EPA had the authority to regulate greenhouse gases from stationary sources already subject to the Clean Air Act’s permitting requirements. While the Court rejected an alternative reading of the statute proposed by EPA, the Justices blessed a solution that permits regulation of the vast majority of greenhouse gas emissions.”
At the heart of the industries’ case against the EPA was the argument that stationary sources of GHGs cannot be regulated under the Clean Air Act (CAA) because the EPA has only regulated the largest sources of them. The EPA did this through something termed the Tailoring Rule in which the agency only required permits 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 for any particular pollutant covered by the PSD and Title V permit programs. Clean Air Act Section 169(1) requires stationary sources with emissions greater than 250 tons per year to obtain prevention of significant deterioration permits, and sources with emissions greater than 100 tons per year are required to obtain Title V operating permits.
Without this exception, the permitting program would be overwhelmed by an EPA-estimated additional 81,000 PSD permits and 6.1 million Title V permits. By employing the Tailoring Rule the EPA would be able to reduce regulatory burden while still permitting sources responsible for 86 percent of GHG emissions from stationary sources.
In the opinion, Scalia writes that the Tailoring Rule doesn’t make permitting of PSD and Title V permits acceptable, writing:
In the Tailoring Rule, EPA asserts newfound authority to regulate millions of small sources — including retail stores, offices, apartment buildings, shopping centers, schools, and churches — and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate. We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. 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.
… To sum up: We hold that EPA exceeded its statutory authority when it interpreted the Clean Air Act to require PSD and Title V permitting for stationary sources based on their greenhouse-gas emissions. The EPA may, however, continue to treat greenhouse gases as a “pollutant subject to regulation under this chapter” for purposes of requiring BACT for “anyway” sources.
The decision paves the way for the Obama administration to continue pushing for action on climate change through a number of initiatives as part of the Climate Action Plan. While the Supreme Court points out that the EPA slightly overextended its bounds in asserting the CAA, in the face of chronic inaction in Congress and ongoing politicizing of the issue, the decision is a straightforward response that leaves much of the EPA’s approach intact.