Analysis
Stepping into the ongoing national debate over global warming, the Supreme Court has opted to clarify how far the federal government may go with its power to limit the amount of so-called “greenhouse gases” that enter the nation’s atmosphere. Although the Court picked out a single issue to decide, from a broad list of challenges, that one question is at the heart of a deep dispute over federal regulation of air pollution under the Clean Air Act.
After the Court’s review order came out Tuesday, it became clear immediately that the U.S. Environmental Protection Agency has the authority to regulate greenhouse gases on the premise that they contribute to heating up the planet and thus pose a threat to human health and to the environment, and that the agency definitely can curb such emissions from the exhausts of cars and trucks. Those powers, too, had been under challenge, but the Court turned aside those protests, leaving intact EPA’s rulings on those aspects.
What the Court did take on was a sharp new controversy over a policy that EPA has been following for thirty-three years, even before global warming was thought to be a problem. Since 1980, EPA has understood that once it decided to regulate any single kind of air pollution, it could reach out further and deal with all such pollutants and their sources. This, the agency has argued, follows from the simple fact that the Clean Air Act gives it power over “any air pollutant.”
EPA followed that policy when it concluded in June 2010 (prompted by a Supreme Court ruling in 2007) that it should deal with pollution from cars and trucks (“mobile sources”) and, from there, it automatically moved on to claim the power to deal with larger, stationary sources of greenhouse gas emissions: that is, generating plants for power companies, and industrial factories.
Reacting to complaints by industry, a group of states, and advocacy groups, the Court agreed on Tuesday to decide whether the legal regime for cars and trucks is a valid “trigger” for launching a parallel regime for fixed, or stationary, sources.
The Justices, rather than accepting for review any version of the question posed by the challengers, instead posed its own version, but in doing so borrowed almost exactly the language used by the Justice Department in a brief that summed up the issues raised in the case. (The Department had opposed any Supreme Court review of the greenhouse gas controversy and, while the Court ignored that plea, it did trust the Department to clarify the question. Indeed, the Court changed only a single word in the Department version — asking whether EPA had “permissibly” used that trigger, rather whether it had “correctly” done so. That seemed to make the issue one of power rather than one of discretion.)
Accepting six petitions that, in one way or another, had raised the “triggering” issue, the Court said it would decide whether federal law gave EPA the authority to reach fixed sources of greenhouse gases based upon the separate regulation of exhausts from cars and trucks. It denied review of three other petitions without explaining why, but those did not directly pose any variation of that question. The lead case being reviewed is Utility Air Regulatory Group v. EPA (docket 12-1146), and presumably will carry that title.
The question under review actually has two possible interpretations, one broader than the other. As the legal filings in the case are sent in over the next few months, lawyers on both sides probably will make arguments on both variations.
The broad version is whether EPA can bootstrap regulation of one form of air pollution into authority to issue rules for all — that is, the broad policy that dates from 1980. If the Court gives a clear-cut answer to that sweeping question, it would either significantly enhance EPA’s global warming powers, or sharply curtail them.
The narrower version is whether EPA was allowed even to use the “trigger” to start regulating stationary sources, since it did so only after claiming the power to modify the threshold for air pollution that the Clean Air Act spells out if stationary sources are to be put under federal controls at all.
The Act explicitly says that such sources must get permits from EPA if they put out 250 tons of a pollutant every year, for larger entities, or 100 tons a year, for smaller ones. Permits are required to build a new stationary source, or change an existing one in a significant way, or to continue operating a “major source.” EPA said that, if it used that threshold, it would expand the number of facilities it would be regulating far beyond what Congress intended, from 15,000 to 6.1 million, costing it $22.5 billion in paperwork, and costing industry many more billions to comply. So EPA set the thresholds at 100,000 tons a year for large sources and 75,000 for smaller ones.
If the Court were to find that EPA should not have made that change, it could undercut EPA’s current program for regulating stationary sources, and at least pose a major policy dilemma on what to do. The thresholds set in the Act itself would oblige EPA to regulate even apartment buildings or hospitals, for example, because they usually do emit beyond the threshold. If, however, the Court were to allow that switch, then EPA could proceed as it planned, and pare down the regulatory regime to a manageable level.
The core EPA policy that is at the center of the Court’s review was not controversial for a number of years, because EPA had decided that its authority was limited to regulating the six specific forms of air pollution that EPA had designated as threats to air quality: carbon monoxide, lead, nitrogen oxide, ozone, particle pollution, and sulfur dioxide. Stationary sources that emitted those kinds of pollution usually exceeded the thresholds written into the Clean Air Act, so where the thresholds stood was not an issue.
In those years, EPA did not believe it had the authority to deal with other pollutants, and so, even as fears began to grow that global warming was becoming a problem and that part of the problem could be traced to greenhouse gases, EPA made no move to regulate that form of pollution.
It only moved into this area after the Supreme Court ruled in 2007, in the case of Massachusetts v. EPA, that the agency had the authority to do so, if it first concluded that greenhouse gases posed a threat to human health and the environment. The Court said explicitly that greenhouse gases came under the Act, because it covered “any” air pollutant. The Court also accepted the scientific argument that global warming was a major environmental challenge.
EPA then began fashioning rules to deal with this perceived environmental hazard, beginning with its “endangerment” ruling in December 2009, concluding that it should regulate greenhouse gases to try to slow global warming. That was followed in May 2010 by rules to regulate auto and truck exhausts, and in June 2010 by applying the auto and truck (“mobile sources”) finding to trigger regulations of stationary sources.
More than seventy business groups, public policy advocacy organizations, and a group of states challenged every part of the greenhouse gases regime, in the U.S. Court of Appeals for the D.C. Circuit. It upheld all of the provisions on which it ruled (including the “trigger” mechanism and the underlying policy supporting it), but found that no one had a legal right to challenge some of the provisions, so it did not rule on those.
The case then moved on from there to the Supreme Court. It took the Court some time to choose among the petitions and draft the question that it was prepared to decide. Although the four members of the Court who had dissented in the basic greenhouse gases ruling in Massachusetts v. EPA remain on the Court, and only three members of the five-Justice majority there are still sitting, the Court passed up requests to reconsider that decision. It took the votes of at least four Justices to grant review of the case, but the Court never reveals who casts those votes in a given case.
Oral argument on the case is not likely before February.
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