Health & Human Services

U.S. Supreme Court Appears to Question EPA Approach to Greenhouse Gases

by | February 25, 2014
 

By Jake Grovum

A majority of the U.S. Supreme Court seemed skeptical Monday of the Obama administration’s approach to regulating greenhouse gas emissions, in a case that tests the Environmental Protection Agency’s authority and has divided the states.

The government’s authority to regulate greenhouse gases under the Clean Air Act — which the Supreme Court upheld in a 5-4 ruling in 2007 — wasn’t at issue in the arguments Monday. Rather, industry groups and more than a dozen states object to how the agency is carrying out those limits. At least 18 states, meanwhile, back the EPA’s approach.

Specifically, those challenging the EPA say it is reading too broadly its authority to regulate greenhouse gases, carrying over limits from vehicle transmissions and applying them to stationary sources such as power plants. They also say the EPA is picking and choosing which parts of the law to enforce by establishing a permitting scheme for greenhouse gas emitters, because its threshold for when those regulations take effect is above the law’s limits.

The government argues a lower limit would potentially ensnare millions of buildings nationwide beyond the intent of the regulations, including public schools and some apartment buildings. It argues lessening the requirements allows for a transition and allows regulators to target only the most worrisome polluters.

For their part, those opposing the limits say if the government has to make such an exception, then the limits were never meant to apply under the law in the first place.

Defining Agency Authority

In an unusually long 90-minute session, the justices tangled with the limits of executive and agency authority, along with environmental and climate science. The oral arguments were even extended an additional 10 minutes, as the justices weighed congressional intent versus executive rule-making. They considered hypotheticals on what could be covered under the expansive view of regulatory authority — everything from light-bulb choices at a factory (maybe) to the environmental impact of a high school football game (probably not).

By the end of the arguments, even some of the more liberal justices seemed skeptical of the liberties the Environmental Protection Agency had taken on greenhouse gas emissions. Justice Elena Kagan seemed troubled at times by some of the agency’s decisions. And Justice Sonia Sotomayor asked Solicitor General Donald Verrilli what, in essence, would be the best way for the government to lose its case. (She apologized in advance of the question, saying she knew litigators hated being asked that question in court.)

Only Justice Stephen Breyer seemed willing to make a clear case for deferring to the agency and allowing “reasonable” exceptions to the law’s enforcement.

But it was Justice Anthony Kennedy (who was the fifth vote with the four liberals on the court at the time of its 2007 ruling) who pointedly challenged Verrilli, just minutes after stressing that the government’s broader authority to regulate greenhouse gases wasn’t in question.

“I couldn’t find a single precedent that strongly supports your position,” Kennedy said, referring to Verrilli’s brief in the case, and asking him to give him an example to cite in a potential ruling in the government’s favor.

“There aren’t a lot of cases, that’s true,” Verrilli replied, before going on to defend the agency’s approach, citing other cases, including some hypotheticals, where an agency is given leeway to decide how best to enforce regulations that leave precise methods or limits ambiguous.

Effects of a Ruling

The case before the justices is complex, in part because it is a consolidation of a half-dozen challenges to the EPA’s greenhouse gas limits that have emerged in recent years.

Because of that, the justices could rule in any number of ways, making the potential fallout of a decision against the EPA hard to discern. A narrow ruling against the EPA, for example, could still allow the government to regulate many facilities that are already subject to the permitting requirements.

The court could support the EPA’s approach, subjecting more emitters to the limits. Or, as Breyer suggested during the arguments, the EPA could respond to an unfavorable ruling by making use of a different part of the Clean Air Act to achieve much the same result.

Either way, the ruling could alter the way Washington works with state and local governments to enforce greenhouse gas permitting. Any ruling in this case could shape that relationship in the future, especially as more attention seems likely to focus on greenhouse gas limits in years to come.

Currently, the greenhouse gas limits are carried out with a permit process that by definition varies from region to region and case by case, as opposed to nationwide policies like those on vehicle emissions.

If upheld, the federal government’s current regulations could require states to continue to form their own ways to evaluate permits and regulate greenhouse gas emitters, alongside federal regulators. States opposing the limits, along with industry interests, say that could hinder economic growth.

In making his case, Verrilli not only relied on the agency’s authority under the law, but also the importance of the government’s fast response and quickly enacted regulations to address climate change, which he called an “urgent problem.” The authority the EPA has cited under the Clean Air Act, in this case, was designed to let regulators respond to unforeseen environmental concerns and react to new science that forced action, he said.

Attorney Peter Keisler, representing private industry interests in the case, said it was “not plausible” that Congress envisioned such a patchwork of rules to address a global issue like greenhouse gases. Jonathan Mitchell, the solicitor general of Texas, also argued against the regulations, saying that if scheme like the one adopted by the EPA can’t work under the law as written, then it wasn’t intended to be part of the law in the first place.

The court is expected to rule by the end of its term this summer.

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