Utility Air Regulatory Group v. EPA, the Supreme Court global warming case decided on June 23, 2014, gave EPA a slap on the wrist and then sent the agency on its merry way to dictate national policy on climate change. As a check on EPA’s ambition, it has all the weight of a feather pillow. As a defense of the separation of powers, it is unbearably light.
Justice Antonin Scalia assembled a bare majority in favor of a face-saving political compromise. Two sharply opposed views vied for the Court’s approval:
- The Clean Air Act (CAA or Act) authorizes EPA to regulate greenhouse gases from stationary sources through the Act’s Prevention of Significant Deterioration (PSD) preconstruction permit program and Title V operating permit program, as Justice Breyer (joined by Justices Ginsburg, Sotomayor, and Kagan) argued in dissent.
- The CAA does not authorize PSD and Title V permitting for greenhouse gases, as Justice Alito (joined by Justice Thomas) argued in dissent.
Instead of endorsing one of those alternatives, the Court opined, 5-4, that PSD and Title V permitting do apply to greenhouse gases – but only for sources already subject to the permitting programs as “major” emitters of other (“conventional”) air pollutants.
This half-way house ruling, authored by Justice Scalia, allows both sides to claim victory. “In Utility Air Regulatory Group v. EPA, the Justices feed several major climate regulations into the wood chipper,” the Wall Street Journal crowed. “Today’s ruling upholds the heart of EPA’s program for regulating carbon pollution from large new industrial facilities under the [PSD] provisions of the Clean Air Act,” stated Rep. Henry Waxman (D-Calif.).
Alas, Rep. Waxman is correct. UARG v. EPA is a big win for the agency. As the Court states on p. 10, EPA sought to regulate carbon dioxide (CO2) from facilities accounting for 86% of U.S. stationary-source greenhouse gas emissions. The Court trimmed back EPA’s reach to facilities accounting for 83% of stationary-source emissions.
More importantly, the Court’s ruling allows EPA to impose greenhouse gas controls on many diverse sources (power plants, industrial/commercial boilers, pulp and paper mills, cement production facilities, iron and steel mills, refineries, nitric acid plants, and landfills), all in one fell swoop.
In contrast, had the Court nixxed PSD for greenhouse gases, EPA could regulate CO2 from stationary sources only one industry at a time by establishing new source performance standards (NSPS), such as its proposed carbon “pollution” rule for new fossil-fuel power plants. The expansion of EPA’s greenhouse gas regulatory program would have slowed to a crawl. Now, thanks to UARG v. EPA, the program will continue to grow at breakneck speed.
Consider that the carbon “pollution” rule has been more than three years in the making and is still not final. Litigation might put it and other planned greenhouse gas NSPS on hold for several more years.
UARG authorizes EPA to impose CO2 controls on multiple industries between now and President Obama’s departure. This will affect the politics of energy policy. After spending millions on regulatory compliance, industries subject to PSD for greenhouse gases may not want to see their investments go for naught. Worse, some may want EPA to impose CO2 controls on other industries to ‘level the playing field.’ UARG v. EPA will make it harder for future Congresses and the next president to re-limit EPA and roll back Obama’s anti-carbon agenda.
What the Court decided
In UARG, the Court came to the following conclusions: [click to continue…]