New York Magazine’s Jonathan Chait Wrong Again: SCOTUS Did Not Order EPA To Regulate GHGs

On April 30th, New York magazine’s Jonathan Chait authored an uninformative article about environmental cases before the Supreme Court, in which he penned this whopper: “In 2007, the Court not only allowed but actually ordered the EPA to regulate heat-trapping gasses.”

By erroneously claiming that the Supreme Court directed EPA to regulate greenhouse gases under the Clean Air Act, Chait commits a mistake commonly rendered by cheerleaders of the President’s climate agenda. (As an aside, this is the second occasion of late that we’ve taken the time to correct an energy/environment policy mistake by Chait.)

Here’s the background: During the Bush administration, States and environmentalists petitioned the EPA to regulate greenhouse gases under the Clean Air Act. EPA refused, claiming that it didn’t have the authority to do so, because greenhouse gases do not constitute a “pollutant” as defined by the Act. The States and green groups then sued, and the case ultimately went before the Supreme Court. In a 2007 ruling, Massachusetts v. EPA, the Court found that greenhouse gases are indeed Clean Air Act “pollutants” and, therefore, that the agency possesses the authority to regulate.

However, the Supreme Court did NOT “order the EPA to regulate heat-trapping gases.” Regarding whether to proceed with a Clean Air Act regime for greenhouse gases, the Massachusetts v. EPA Court concluded:

[O]nce EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.

I’ve formatted the key part: EPA doesn’t have to act on greenhouse gases if it provides some reasonable explanation as to why it cannot. The agency’s rationale, moreover, must be grounded in the statute.

Finding a “reasonable explanation” in the Clean Air Act for not regulating greenhouse gases isn’t difficult, because the statute wasn’t written with global warming in mind. Rather, Members of Congress drafted the law to mitigate conventional pollution, like nitrogen oxides or sulfur dioxide. Greenhouse gases, on the other hand, are an entirely different problem; their ubiquity (relative to conventional pollution) does not comport well with the means established by the Clean Air Act. As a result, if one earnestly applied the letter of the law to greenhouse gases, EPA would have to regulate the construction of every edifice larger than a mansion. Taken to its logical conclusion (i.e., a National Ambient Air Quality Standard for greenhouse gases), climate change regulations under the Clean Air Act would necessitate de-industrialization.

President Obama’s EPA is staffed with bright lawyers who recognized this problem. Their solution was to rely on a rarely used doctrine of statutory interpretation, known as “absurd results,” whereby an agency claims the right to effectively re-write a statute whose letter-of-the-law implementation would otherwise lead to an outrageously unfavorable outcome. Thus, EPA avoids its statutory responsibility to inflict a regulatory Armageddon on the U.S. economy. The D.C. Circuit upheld EPA’s reliance on “absurd results”; the matter is now pending review by the Supreme Court.

But it works both ways! Just as EPA is relying on the “absurd results” engendered by greenhouse gas regulations under the Clean Air Act in order to re-write its statutory responsibilities, the agency could have relied on the “absurd results” doctrine in order to decline regulation, without violating Massachusetts v. EPA. Such a rationale, moreover, is firmly grounded in the structure of the statute.