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Greenhouse Gas Emissions at the Supreme Court, Part 2

The fate of these smokestacks hangs in the balance. Image via.

Hello readers, and welcome to the coldest March that I’ve experienced in some time. The federal government was closed on Monday because of snow (but not the Supreme Court), and as I write this column here at Brown, the temperature is currently 15 degrees Fahrenheit…brr! I wonder what’s causing this strange weather. Climate change, perhaps? Or is it those pesky greenhouse gas emissions? Either way, I’m here to provide you with an update on Utility Air Regulatory Group v. Environmental Protection Agency (henceforth “Utility Air”), since the oral argument for the case took place on February 24.

I previewed this case a few weeks ago, but let’s briefly review the issue at hand. In 2007, the Supreme Court held in Massachusetts v. Environmental Protection Agency that the Environmental Protection Agency (EPA) was granted the authority to regulate carbon dioxide and other greenhouse gases under the Clean Air Act. Then, in 2011, the Court held in American Electric Power v. Connecticut that under the Clean Air Act the EPA was specifically authorized to regulate greenhouse gas emissions from power plants. Utility Air is the latest in this series of greenhouse gas regulation cases, and the Court must now decide whether, as part of its authority under the Clean Air Act, the EPA can require permits for stationary sources of greenhouse gas emissions.

In short, “One part of the Clean Air Act…set the emission thresholds [for stationary sources of greenhouse gases] so low that even schools and small businesses would be covered. [The EPA’s] solution was to raise those thresholds, and the resulting standards covered far fewer sources” (from the New York Times). The Clean Air Act originally “said pollution limits of 100 to 250 tons per year triggered permitting requirements,” but the EPA raised those limits to “75,000 to 100,000 tons per year for greenhouse gases to identify the facilities most in need of regulation” (from the Washington Post).  It is this action that Alabama, Florida, Georgia, Indiana, Louisiana, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas and the Louisiana Department of Environmental Quality find troubling (from the New York Times): the EPA changed part of a law without congressional action. This change was construed by the Court as “whether the EPA can require permits for stationary sources of greenhouse gas emissions,” and if the Court rules against the EPA, the limits will be returned to the lower numbers originally set by the Clean Air Act.

This case is broader than just a change in the Clean Air Act, though, and it could have widespread ramifications in two different ways. First, there is the question of whether Article II of the Constitution actually allows the executive branch, and therefore the EPA, to take this sort of independent regulatory action. If the Court holds that the EPA cannot require permits for stationary sources of greenhouse gas emissions, its decision will at a minimum have to address the limits of a federal agency to alter an enacted law, and it may make a broader statement about executive branch powers, including when and how federal agencies can take on policy-making roles usually reserved for the legislative branch.

Second, the climate change debate plays a huge role in Utility Air, as the “power companies and 13 states including Texas” who brought this case to the Supreme Court and are arguing against the EPA believe that “the EPA was overstepping its powers by using air quality rules to tackle climate change” (from the Guardian). That argument is not an incorrect statement of facts, as the EPA is trying to mitigate the effects of pollution on the environment by reducing greenhouse gas emissions, and the statement shows how politicized the issue of climate change has become. (How dare the governmental agency founded to protect the environment try to protect the environment!) The states were not entirely baseless in bringing this case because the EPA did alter a law after Congress had passed it, but the EPA did so in order to do its job more efficiently, not to pursue a political, “radical environmentalist” agenda.

Given these two factors, the Court has the ability to influence on a large scale both the methods by which federal agencies may enforce laws and the federal approach to combatting climate change. Utility Air is one of the most important cases of the 2013-2014 docket and, after the oral argument, the justices’ decision is still somewhat uncertain. As the Washington Post reports, “Liberal justices seemed ready to defer to the agency’s interpretation about how to protect the environment from greenhouse gases under a contested portion of the Clean Air Act,” while the other side of the bench was “skeptical of how the agency had to essentially rewrite some of the law’s requirements to avoid ‘absurd’ results.” This split is not surprising, as climate change is a highly politicized issue and, more so now than ever, the justices often divide themselves along party lines.

There was some consensus between all nine justices, though, as “all sides agreed that the EPA has the power to regulate greenhouse gases, but they differed on how the agency should go about it” (from the Washington Post), and after the oral argument it seems that the more conservative justices might be the ones with the deciding votes here. Justice Kennedy seemed to be somewhat against the EPA’s argument, going so far as to tell the EPA’s lawyer, Solicitor General Donald B. Verrilli, Jr., “I couldn’t find a single precedent that strongly supports your position” (from the New York Times). He is the perennial swing vote, so his attitude toward Solicitor General Verrilli might indicate a victory for the power companies and 13 states who brought the case against the EPA.

Interestingly, “the justices did not seem inclined to re-examine [Massachusetts v. EPA],” as some pro-environment groups had feared, and “there seemed to be a consensus that the agency would retain other means to address emissions from stationary sources if the programs challenged in [Utility Air v. EPA] were struck down” (from the New York Times). During the case, there seemed to be some confusion about how effectively the EPA would be able to address such emissions: as the intrepid Lyle Denniston points out, “If the current EPA initiative withstands the present challenge…[it] would allow the agency to reach eighty-six percent of the main industrial sources of the problem. Without it, [the EPA] would be reaching about eighty-three percent” (from SCOTUSblog). This three percent drop may not seem sizable to a layperson, but Solicitor General Verrilli (on behalf of the EPA) argued that it would indeed be a significant difference.

Whether the “three percent drop actually occurs or not” is up to the Nine, and we must wait for their decision on how the EPA will be able to regulate greenhouse gases in the future. In the meantime, come back next week as I discuss Hall v. Florida, “the challenge to Florida’s scheme for identifying defendants who are intellectually disabled and therefore ineligible for the death penalty” (from SCOTUSblog). Stay warm, and see you next Wednesday!

About the Author

Lena Barsky hails from Arlington, VA and is a Classics concentrator who graduated in 2014. When not translating the works of Vergil and Ovid, she spends her time keeping tabs on all things judiciary. Her primary areas of interest are the Fourteenth Amendment, questions of federalism, immigration, and combating domestic violence and sexual assault. Ruth Bader Ginsburg is an idol of hers, and her favorite opinions to read are those written by Justice Robert Jackson. Her hobbies include performing in various ensembles on the clarinet, reading anything and everything she can get her hands on, swing dancing, and fighting for women’s rights.