UPDATE: The D.C. Circuit Court decision at issue in this case can be read here. The order denying en banc review, together with opinions issued along with that order, can be found here.
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In a flurry of activity at a pace unusual for a government agency, the U.S. Environmental Protection Agency in a span of less than six months reeled off a series of rulings that brought a major expansion of federal policy aimed at curbing global warming — one of the Obama administration’s highest domestic priorities.
Finding greenhouse gases to be a major cause of heating up the planet, the EPA drew up a series of regulations that now pose a major analytical challenge — and a pile of reading — for the Supreme Court. A foot-high stack of legal papers is on file and is still growing. The Justices won’t get at this until summer time, but when they do, it will not be easy to sort it all out.
Curiously, the nine pending petitions could either turn into one of the biggest regulatory cases the Court has had in years, or could go nowhere because of the argument that the Supreme Court has already all but resolved the dispute. EPA’s new rules have an interlocking character that makes it seem that they followed almost predictably from a decision by the Court six years ago.
If the Court does agree to take on the new case (something it won’t decide at least until near the opening of its next Term), it would mark the third time in recent years that the controversy over global warming, and what legally to do about it, has come before the Justices. They put the EPA into the business of regulating greenhouse gases — as a factor in global warming — in the ruling in 2007 in Massachusetts v. EPA. EPA did not want the task at that time, but the Court gave it little choice under the Clean Air Act.
That is the decision that set the EPA off in the Obama administration on an energetic path toward the potentially massive regulatory regime it put into place between December 2009 and April 2010 — a regime that it is still adding on to. And that is the ruling that the D.C. Circuit Court relied upon heavily in upholding EPA’s regulatory handiwork in the decision now under challenge in the nine petitions awaiting the Justices.
Two years ago, in the case of American Electric Power v. Connecticut, the Court reinforced its view that this is an issue that is best left to the EPA.
In that decision, turning aside an attempt by environmental groups to use “public nuisance” lawsuits aimed at electric power plants, to stop them from polluting with greenhouse gases, this is what Justice Ruth Bader Ginsburg wrote: “It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions….Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”
It is probably reading too much into that comment to suggest that the Court will shy away from ruling on the four policy initiatives that EPA adopted in response to the Massachusetts v. EPA decision. There were two strenuous dissents in the D.C. Circuit Court when the case was denied en banc review there last December, and some of the Justices themselves have indicated that they are still not reconciled to the Court’s decision in the Massachusetts case. That was a five-to-four ruling, and the four dissenters are still on the bench.
The petitions challenging the new EPA rules began arriving at the Supreme Court on March 20, and the nine now on the docket are awaiting the response of the EPA and the U.S. Solicitor General. The government’s lawyers have twice been given extensions of time to file their response, and that is now due on June 21, although they could ask for more time. That is likely to mean that the Court will get its first look at the controversy when it begins meetings aimed at the new Term in late September.
Although the EPA finished almost three years ago the last of the four new rules at issue before the Supreme Court now, it has taken until now for the sweeping challenge by industry and advocacy groups to make its way to the Court. The challenge unfolded in the D.C. Circuit Court over most of that intervening time, winding up with a ruling that two of the four rules were valid, but that no one had the legal right to challenge the other two. All four thus withstood that challenge.
At this stage, only those four rules are being tested in the pending petitions. But, based upon two of those rules, EPA has moved on to write rules to limit greenhouse gas emissions from heavy-duty trucks and off-road machines, electric power plants, aircraft engines, ships, petroleum refineries, and other carbon-emitting facilities. As those others have emerged from EPA, new challenges have been mounted to them in lower courts.
But the key to all of those other regulatory thrusts are some of the rules now before the Supreme Court. Even so, one of the most fundamental complaints about the greenhouse gas rules in the pending petitions is focused on a policy decision that EPA had made thirty-three years ago, when global warming and climate change were not major topics of controversy in America, and no one was yet pressing EPA to do anything about the phenomenon of greenhouse gases (so called because they collect in the atmosphere and form a kind of greenhouse canopy over the earth, trapping heat beneath it).
That August 1980 decision, now known in the Clean Air Act field as the “triggering” decision, defined when EPA would put limits on construction or expansion of factories or plants — “stationary sources” — that emitted pollution that would foul the air. If permits were required by any major emission source for any specific pollutant, EPA decided back then, all pollutants regulated by EPA under any part of the Act would also have to be used as triggers for the permitting limits.
If the Supreme Court were now to overturn the “triggering” policy of EPA, that would remove all stationary sources of pollution — that is, anything other than a car, truck, airplane or other mobile platform — from greenhouse gas emission limits (assuming the Court upheld the mobile platform regulations). That would mean there would be no greenhouse gas limitations on the major sources of carbon emissions across the U.S.
When the Supreme Court pushed EPA to take seriously the greenhouse gas phenomenon, in the 2007 decision in the Massachusetts case, the Court was dealing only with air pollution from mobile platforms, and especially with new cars and trucks. EPA regulation of those sources is covered under the Clean Air Act’s Title II. The big emitters of pollution — the “stationary sources” such as major factories — are covered under Title I.
But it was EPA’s 1980 decision dealing with Title I that provided the basis for turning a set of greenhouse gas rules for new motor vehicles into a sweeping application to stationary sources, too. One of the petitions that focused on the “triggering” policy — by a long list of groups headed by the American Chemistry Council — told the Court that the policy “represents the most sweeping expansion of EPA’s authority in the agency’s history, extending its reach to potentially millions of industrial, commercial, and residential facilities across the country, at costs estimated to run into the tens of billions of dollars per year.”
EPA, in fact, conceded that if it applied its greenhouse gas rules to any facility that would be covered under the Clean Air Act formula for stationary source regulation — those that emitted between 100 and 250 tons or more per year of a regulated pollutant — that would extend far beyond what Congress had intended.
So, in one of its rules (known in the field as the “tailoring” rule, the last of the four now at issue), EPA sought to limit the expansive impact of its new regulations by applying the limitations only to the largest sources — those that emitted more than 75,000 or 100,000 tons or more per year of the gases. The challengers have argued to the Supreme Court that the agency simply made up that new threshold for its gas rules, and thus created a regime that Congress had never contemplated.
Among the nine petitions, most of the challengers pick and choose among the targets, with some attacking only the policy switch made by EPA in 1980, and the others attacking one or more of the four rules that EPA specifically fashioned for greenhouse gases.
The four rules, of course, are all traced by EPA to the Supreme Court’s Massachusetts ruling six years ago. And, in upholding the specific rules on which it did rule, the D.C. Circuit basically concluded that the Supreme Court had all but dictated that the agency start regulating greenhouse gas emissions, and from that beginning, each of the later rules more or less fell into place.
In the wake of the Massachusetts ruling, this was the sequence of EPA actions that the Supreme Court is now being asked to overturn (in addition to the 1980 policy declaration), with these actions coming between December 15, 2009, and June 2, 2010:
** First, EPA made the basic finding that the Supreme Court had strongly hinted that it should make — that is, that greenhouse gas emissions will harm or contribute to harming public health or welfare, because of their scientific link to global warming and the environmental woe it supposedly brings, and thus should be regulated by EPA. It identified six gases, including carbon dioxide, with the other five to be measured in relation to the warming effect of carbon dioxide. This rule, known as “the endangerment rule,” was necessary before EPA could tackle greenhouse gases as a pollutant from any source. In this beginning, though, it was dealing only with mobile sources.
** Second, EPA announced what is now known as “the tailpipe rule,” and sometimes as the “light-duty vehicle rule.” This followed almost directly from the Supreme Court ruling, as the D.C. Circuit interpreted this rule, because once EPA had found that greenhouse gases were a pollutant under the Clean Air Act, it had to regulate those emissions for new cars and trucks. This rule on its face applied only to cars and light-duty trucks, such as pickups. But it had the effect (under the EPA’s 1980 policy guideline) of making greenhouse gases a pollutant for all parts of EPA’s air pollution control regime. Although EPA did not mention it at the time, the adoption of this rule silently triggered greenhouse gas emissions for stationary sources, too.
** Third, because of the 1980 policy, EPA had to find a way to keep in check the expanse of the greenhouse gas regulation so that it did not reach very small emission sources, such as private homes. So, it rewrote the threshold for the “triggering” program, applying greenhouse gas regulation to only the largest stationary sources. This was called the “tailoring rule.”
** Fourth, EPA put into effect what is called the “timing rule.” Since the “tailpipe rule” was to go into effect on January 2, 2011, and that was what had given rise to greenhouse gas regulation of stationary sources, too, EPA decided that this was also the date on which it would begin phasing-in regulation of large emitting stationary sources.
When the three-judge panel of the D.C. Circuit ruled on the challenges late last June, it found that no one had “standing” — that is, a right to sue — to challenge either the “tailoring rule” or the “timing rule.” It said that both of those rules actually had the effect of reducing the burden that would fall on large emitting sources of greenhouse cases, so no one in the case could show they would be injured.
The Circuit Court panel then went on to uphold the “endangerment” and “tailpipe” rules. The panel said that, under the Supreme Court’s Massachusetts decision, EPA was essentially under a mandate to find “endangerment” from greenhouse gases. And, under the Clean Air Act, once it had made that finding, it had no choice but to issue the “tailpipe” rule to implement the finding.
The panel said the 1980 policy declaration was clearly within the scope of the Clean Air Act, and said that, in any event, the Supreme Court’s ruling had rejected the argument that EPA in regulating stationary sources of air pollution was limited to the specific pollutants identified in the permitting regime itself.
The en banc D.C. Circuit denied reconsideration of the panel ruling, but two of the eight judges filed strong dissents — Circuit Judges Brett M. Kavanaugh and Janice Rogers Brown. They are two of the most conservative members of the Circuit Court, and their dissents could have an influence on at least some of the Supreme Court Justices.
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