Supreme... Been Worse

Supreme Court Hampers EPA on Greenhouse Gases But It Could Have Been Worse

By Scott Lemieux

The majority opinion by Scalia made it harder for the government to regulate polluters, but doesn't appear to impede the administration's new climate regs.

Today, the Supreme Court failed to release almost all of the term's outstanding opinions for another day (or two, or three.) But it did issue an opinion dealing with the authority of the Environmental Protection Agency to deal with one the most pressing problems facing the world: climate change. Justice Scalia's opinion unnecessarily restricts the EPA's ability to regulate greenhouse gases, but the opinion could have been much worse.

Utility Air Regulatory Group v. Environmental Protection Agency does deal with a real issue in the Clean Air Act. The act calls for the EPA to require permits from stationary sources that emitted between 100 and 250 tons or more per year of a pollutant covered by the act. In the context of carbon emissions, however, the quantities produced are much greater than for the typical pollutant, which would turn a statutory provision intended to exclude minor sources of pollution into a requirement to regulate these relatively small sources. Sensibly, the EPA responded to this by creating a trigger for greenhouse gases that would kick in 100,000 tons per year, to ensure that permits were required only from large polluters as the act intended.

Justice Scalia's majority opinion, however, rejects the EPA's reasonable response. According to Scalia, the EPA lacks the authority to tailor the statutory threshold to the reality of greenhouse gas emissions. Either the EPA must require permits from every stationary source falling within the original 100-250 tons threshold, or it cannot regulate them at all.

As Justice Breyer notes in his persuasive dissent, the EPA's response is preferable to Scalia's reading of the law: "What sense does it make to read the Act as generally granting the EPA the authority to regulate greenhouse gas emissions and then to read it as denying that power with respect to the programs for large stationary sources at issue here?" The agency has to exercise discretion either way, and it makes much more sense for the EPA to reconcile the threshold for regulation with the intent of Congress than for the EPA to not regulate sources Congress intended the EPA to regulate. As Breyer observes, "[f]rom a legal, administrative, and functional perspective—that is, from a perspective that assumes that Congress was not merely trying to arrange words on paper but was seeking to achieve a real-world purpose—[the dissent's] way of reading the statute is the more sensible one."

Having said that, the majority's opinion (which is notably lacking in the conservative talk radio-style pronouncements that have increasingly saturated Scalia's work) could have been much worse. Another question the Court had to deal with in this case was how the EPA could deal with "anyway" sources—that is, entities that are the source of greenhouse gas emissions that are already required to obtain permits because of their emission of another pollutant. According to the majority, the EPA is permitted to regulate the greenhouse gas emissions of these polluters. As Scalia noted in both the text of the opinion and when he summarized his opinion from the bench, according to the solicitor general's brief "roughly 83% of American stationary-source greenhouse-gas emissions" come from these sources "anyway," So the opinion, at least, preserves the EPA's authority to regulate most of the stationary sources of greenhouse gas emissions.

And there is an even more important dog that didn't bark. The majority opinion—over the dissent of the Court's two most radical reactionaries, Alito and Thomas—accepts the Court's 2007 holding that the EPA is authorized under the Clean Air Act to regulate greenhouse gases. Given that in the current political context the EPA is the only plausible federal mechanism for regulating climate change, this matters a great deal going forward.

Today's ruling unnecessarily limits the flexibility of the EPA and will lead to more greenhouse gas emissions than a more reasonable reading of the act would have yielded. But it provides reasons for at least cautious optimism that the Court will not reject the major new climate change regulations recently announced by the Obama administration. If the new regulations are sustained, Republican climate change denialists will have won a battle but lost a major war—which would be good news for the planet.