ENVIRONMENT OCTOBER 15, 2013
This morning, the Supreme Court announced that it will consider manufacturing industry trade groups and Republican-held state governments' case to repeal some of the Environmental Protection Agency’s greenhouse gas regulations. And for both the agency and industry, the real question is what that decision signals for President Obama’s climate change plan, and in particular for the new carbon standards for power plants he tasked the EPA with creating in the coming year.
At first blush, the court’s decision to hear the case sounds like a win for conservatives, but environmental activists say it’s exactly the opposite. That’s because the Supreme Court rejected petitions that challenged the basic premise that greenhouse gases are harmful to the public and, therefore, can be regulated by the EPA. This could have been an opening for the Supreme Court to alter the landmark 2007 decision, Massachusetts v. Environmental Protection Agency, which said greenhouse gases are dangerous. Instead, the court will only hear arguments on the legality of “permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases,” such as power plants and factories.
“This appeal was the very narrowest one the court could have granted after deciding to take the case,” according to John Walke, Clean Air Director for the Natural Resources Defense Council. “More important today was what the justices declined to alter, which was the lower court rulings upholding the finding that greenhouse gas pollution endangers people and the climate.” The president’s authority to set broader standards for industry’s greenhouse gas emissions stems from that fundamental finding, he added.
The law the court will review took effect in 2011 and essentially adds greenhouse gases to a list of harmful emissions for which a plant must get a permit if it will produce them at high levels. The question before the court is “whether certain Clean Air Act permitting requirements have been triggered for large stationary sources,” according to Vickie Patton of the Environmental Defense Fund. Walke says the new standards the EPA is working on, which will set across-the-board limits on plants’ greenhouse gas emissions, have the potential to reduce the amount of carbon in the atmosphere far more than the permit process ever could. (The EPA already released standards for new plants in September and will reveal rules for existing plants in June 2014.)
But the EPA’s opponents see a glimmer of promise in the court’s decision. “There’s an overarching question of how aggressive and how creative with the law the agency can be, legally, as it rolls out this unprecedented regulatory program, and that’s what you see happening here and why the Supreme Court stepped in,” said Ross Eisenberg, Vice President of Energy and Resources Policy at the National Association of Manufacturers (NAM), which was a signatory on one of the petitions granted by the court. Eisenberg said NAM is “not terribly pleased” with what it’s heard so far about the EPA’s ongoing standards writing process. “I hope the Supreme Court will make them reevaluate some of the decisions they’re making and make them be a little more reasonable,” he said.
The permitting regulations the court took up “represent the Obama administration’s first major rule making to address the emissions of greenhouse gases from major stationary sources across the country,” said Richard Lazarus, a professor of environmental law at Harvard, but outside that symbolic importance, it’s unclear how effective they have proved. Environmentalists and the energy sector agree that the EPA has issued only a fraction of the permits to plants that it expected to. But while Walke said this suggests the permitting hurdle hasn’t done much to curb emissions—and findings from the congressional research service back this up—Eisenberg said it connotes damage to business. “There’s a chilling effect on manufacturers’ decision to expand facilities or build new ones because of one more regulatory hurdle,” he said.
Whatever the future of Obama’s carbon regulations, the court’s actions today provide some window into the justices' views on the climate. Since it only takes four of them to agree to an appeal, we can infer that at least six members of the court had no interest in initiating a broad debate about the science of greenhouse gases. “There were not four who wanted to disturb the ruling that carbon pollution endangers health,” Walke said. It remains to be seen if that certainty is enough to usher the EPA’s carbon standards past the opposition.