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The U.S. Supreme Court heard extended oral arguments Monday morning on its third major Environmental Protection Agency greenhouse gas regulatory case in seven years. You can see the preliminary transcript here. Predictions of Court rulings based on questioning in oral arguments from the justices is always risky. But after winning the previous cases, the government could lose this one. That would give the anti-EPA forces some ammunition with which to attack the agency, hurting its Prevention of Significant Deterioration program. Justice Kennedy, as so often the case, is the wild card.

The Supreme Court in the two previous EPA cases affirmed the agency's authority to regulate greenhouse gases. First, there was Massachusetts v. EPA (2007), which gave the EPA the okay to regulate vehicular greenhouse gas emissions. Second was American Electric Power v. Connecticut (2011), in which the court unanimously affirmed the agency's authority to regulate stationary sources of greenhouse gases, such as those from power plants and other industries, under its "endangerment finding" that such emissions threaten people's health.

There is no chance the Court will walk either of those cases back. The issue now is about details.

Six cases are actually involved, the lead one heard Monday morning being Utility Air Regulatory Group v. Environmental Protection Agency. Specifically, industry and state petitioners, who have lost at the lower court level, seek to block the EPA from continuing to regulate greenhouse gases by means of permitting rules that they say Congress did not intend when it passed amendments to the Clean Air Act 37 years ago. They call it an Obama administration "power grab," sometimes adding an adjective—"unprecedented."

Below the fold is analysis of how it went Monday.

Lyle Denniston at the SCOTUSblog recapped:

The Supreme Court spent ninety-six minutes on Monday trying to sort out numbers that could affect government controls on climate change—tons of air pollution emitted per year, differing numbered sections of a federal law, eighty-three-percent coverage versus eighty-six percent, zero precedents to guide the outcome. But the one number that counted: the Environmental Protection Agency seemed close to being able to garner five Justices on its side in Utility Air Regulatory Group v. Environmental Protection Agency, the lead case of six under review on the regulation of greenhouse gases.

As is so often the case when the Court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt. Although he seemed troubled that Solicitor General Donald B. Verrilli, Jr., could call up no prior ruling to support the policy choice the EPA had made on greenhouse gases by industrial plants, Kennedy left the impression that it might not matter.

It was quickly evident that the EPA’s initiatives, seeking to put limits on ground sources of greenhouse gases, almost certainly had four votes in support:  Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  They could not seem to accept that, when the challengers themselves are divided on the best way to read the Clean Air Act’s impact on such emissions, the Court should go with one of those choices rather than with the EPA’s.

On the other side, wrote Denniston, were Antonin Scalia, and probably Samuel Alito, Jr., given the skeptical questions he asked. Chief Justice John Roberts's predilection in the matter was opaque. Clarence Thomas did not ask a single question, continuing an eight-year streak. That leaves Kennedy.
“Reading the briefs,” he commented to Verrilli, acting as the EPA’s lawyer, “I cannot find a single precedent that supports your position.” It appears that there just isn’t one to be had.

That, then, raised the question: how much would Kennedy be willing to trust the EPA to have done its best to follow Congress’s lead without stretching the Clean Air Act out of shape, as the EPA’s challengers have insisted that it has done? He made no comments suggesting that he accepted industry’s complaint of an EPA power grab.

On Saturday, Denniston offered a lengthy look at the details of the case here.

David Doniger at the Natural Resources Defense Council also provided details recently. The result of the two previous EPA cases:

[...] is the Clean Air Act authority that President Obama’s EPA used in his first term to make the science-based determination that carbon pollution endangers our health and environment, and to set landmark standards for new cars and trucks. He’s using that authority now, as part of the Climate Action Plan, to curb the two billion tons of carbon pollution coming each year from the nation’s power plants and to strengthen standards for heavy-duty trucks.
But after the Obama administration early on failed to get Congress to legislate a cap-and-trade program to control emissions, it launched the EPA's efforts under the Clean Air Act to regulate GHGs from vehicles and stationary sources that the Court affirmed in American Electric Power.

Although industry and not a few right-wing politicians continue to try to shut down the EPA’s authority across a broad range of issues, the objections they are raising against the stationary source permitting regulations came about because the agency decided to focus only on the largest greenhouse gas emitters.

Robert Percival wrote:

The most controversial aspect of the EPA’s action is its effort to tailor the permitting regulations so that they apply initially only to the very largest sources of GHG emissions — what it called the “Tailoring Rule.” The CAA sets statutory thresholds of 100 and 250 tons of emissions per year for various sources to be covered by the PSD and Title V permit programs.  Because so many sources emit GHGs, the EPA estimated that 81,000 PSD permits and 6.1 million Title V permits would fall within the statutory thresholds.  Because this would overwhelm the permit programs, the EPA issued the Tailoring Rule that applies the permit requirements only to sources whose GHG emissions exceed 75,000 or 100,000 tons per year.  This includes sources responsible for eighty-six percent of GHG emissions from stationary sources. [...]

The heart of the industry petitioners’ case is the argument that stationary sources of GHGs cannot be regulated under the CAA because the EPA has only regulated the largest sources of them. Ironically, if the EPA were to lose this case, the result could be a more burdensome regulatory program. In light of its Endangerment Finding, the EPA could promulgate a NAAQS [National Ambient Air Quality Standards] for GHGs that would require every state to develop control plans to meet a uniform, national ambient standard. But because the harm GHGs do is global, it can be addressed in a less burdensome fashion, as the EPA has sought to do.

But the goal of the petitioners obviously isn't to take a common sense approach in such matters but to find any means possible to eviscerate the EPA's regulation of greenhouse gases.

Originally posted to Meteor Blades on Mon Feb 24, 2014 at 12:44 PM PST.

Also republished by Climate Change SOS, DK GreenRoots, and Daily Kos.

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Comment Preferences

  •  I'm guessing the SC will split 5-4 (9+ / 0-)

    and rule in the EPA's favor. might even be 6-3 if Roberts joins in.

  •  industries challenging permits complain EPA (17+ / 0-)

    permits can be time consuming and costly! well, you know, even if true, it's about time that the EPA do more to protect communities from climate pollution.

    However, this argument was rejected by one Corporation who obtained 6 permits, and defended the EPA program in a brief filed with the court.

  •  HOW can this even be a question (10+ / 0-)

    much less stand a chance of weakening environmental efforts .  I wish I could just shake everyone of the right leaning justices and say your grandchildren will be living in a wasteland...if they survive at all.  Get it now?

    Keep thinking I'm in outrage burnout, which I am, and then.

    sh

    •  Honestly, ShoshannaD, I (6+ / 0-)

      believe they feel their wealth will protect them. Money has protected them in the past and they know they will be well cared for by the polluting industry.

      The good thing about science is that it's true whether or not you believe in it.― Neil deGrasse Tyson

      by maggiejean on Mon Feb 24, 2014 at 03:51:10 PM PST

      [ Parent ]

      •  Well, it won't protect their grandchildren. Look (0+ / 0-)

        how devastating the storms have already become.  6000 homes where flooded/destroyed this month in the UK.

        The rest of the world knows that the US put most of the carbon in the atmosphere up there.  It is imperative that China and the US act now to reduce emissions.

    •  Its actually an interesting technicality... (2+ / 0-)
      Recommended by:
      Bulldozer, willyr

      The EPA is allowed to regulate any emissions considered harmful, any anybody emitting those gasses needs a permit. But there is a wavier allowing for small polluters (automobiles, auto body shops, homes with fireplaces) to not require an individual permit... based on the concept that their emissions are not significant.

      The original law was made to control pollutants that are harmful in small doses. But CO2 is only harmful in very large doses, and lots of places emit lots of CO2... so according to the old law, pretty much everybody is now a "large" producer of CO2 and needs a permit. So... the EPA came up with new rules about who is a "small" producer of CO2 to again cut the little guy some slack.

      This lawsuit is mainly about where that line should be drawn... some medium sized companies who already file for EPA permits say its not a big deal. Whereas other medium sized companies who might never have had to fill out the EPA paperwork now think its a pain in the ass.

      So... no matter how they rule, this case really wont change too much.

      •  you said: (0+ / 0-)
        So... no matter how they rule, this case really wont change too much.
        This is not valid analysis of the situation.

        A loss in this case would mean that EPA cannot require state new source review and Title V permits for major stationary sources to contain greenhouse gas emission limitations, including emission limitations that achieve the level of stringency associated with best available control technology.

        A loss in this case could easily mean that greenhouse gas emissions could not be regulated in stationary source permits issued by states when they are presently required to do so....an enormous relazation of present in regulations already in effect.

        •  Not exactly (4+ / 0-)
          Recommended by:
          Meteor Blades, willyr, wader, LakeSuperior

          I wrote my JD journal article on this...  basically they would have to redo the endangerment finding under Sections 108-110 instead of relying on the Section 202 endangerment finding.   A longer process, but doable.

          Sections 108-110 gets you a National Ambient Air Quality Standard, which could give the EPA a VERY WIDE authority to do lots of things when setting state implementation plans, like we now have for ozone and other criteria pollutants.  

          There are several other authorities EPA could use, replicating the endangerment finding around the Act to set new source standards for source categories beyond power plants, even up to a Section 211 authority to regulate the supply of motor gasoline!  

          Sometimes when EPA gives you a deal with the Tailoring Rule, you take the deal and don't look under that rock.  Because what might just be there bites a lot harder than a 75k/100k threshold Tailoring Rule.  

          https://litigation-essentials.lexisnexis.com/...

          or the unofficial version

          http://works.bepress.com/...

          Did i just disclose my identity?

          •  I'm sure HSA and NSA already knew (1+ / 0-)
            Recommended by:
            wader

            ;-(


            My country, right or wrong; if right, to be kept right; and if wrong, to be set right.—Carl Schurz
            "Shared sacrifice!" said the spider to the fly.—Me

            by KingBolete on Mon Feb 24, 2014 at 06:04:15 PM PST

            [ Parent ]

          •  Neither primary nor secondary GHG NAAQS are (0+ / 0-)

            possible if SC determines that 42 USC Sec 7602(g) definition of 'air pollutant' does not include greenhouse gases as requested by some of the petitioners if they win.

            Since all previous primary NAAQS are primarily based on respiratory health and respiratory toxicity of criteria pollutants, setting a GHG NAAQS based on 'public health' poses many different questions for scientific decisionmaking about what the level of the primary standard for GHGs would mean.

            A secondary standard for GHG atmospheric concentrations would probably have an easier path.

            •  True (0+ / 0-)

              This is by far a better case for a secondary standard.  There are ways to argue a primary standard, but things get a bit fuzzy.  

              As for the 7602(g) definition - i know some want to run this attack, but I doubt they succeed.  Over the years, the courts have given EPA wide range in endangerment findings (what few have actually occurred).  If they cut the knees out on this one, then i guess the Act is basically finished.  

    •  But that's the wrong question. (0+ / 0-)

      The Supreme Court can't decide if regulating CO2 is a good idea. That's not their job - it's the job of the Congress and the EPA.

      The Supreme Court have to decide if the EPA regs violate the Constitution - a whole different question. I'm no Constitution scholar, but it seems like they've already said it's allowed.

      Early to rise and early to bed Makes a man healthy, wealthy, and dead. --Not Benjamin Franklin

      by Boundegar on Mon Feb 24, 2014 at 05:18:05 PM PST

      [ Parent ]

  •  Regulation can be a pain. but it is necessary (9+ / 0-)

    those of you who grew up in Cleveland in the 60s will remember the Cuyahoga river catching fire. The EPA actually has a very small budget for its mission, less than 10 billion. the EPA needs more money, as do the parks forests and refuges.

  •  My worry is Roberts persuades Kennedy to switch. (7+ / 0-)

    I read Denniston's Saturday preview of the case this morning, and as usual his coverage for SCOTUSBlog is excellent.

    If I understand the "tailoring" issue correctly, because the Clean Air Act didn't originally specify greenhouse gases as covered pollutants---but now they are, via the Supreme Court's own decisions---the EPA had to develop regulatory limits tailored to fit the enormity of the task, despite the seeming textual limitations in the Clean Air Act. This, of course, seems reasonable to me, but not the Court's conservative wing. That includes Roberts who voted in the minority in Massachusetts v. EPA, while Kennedy was in the majority.

    What concerns me is that Roberts may take the tact, like he did in the Voting Rights cases, that circumstances have changed since the writing of the law, and that it can't be administered as written, and therefore Congress should amend it. One hopes Kennedy resists that argument.

    Resist much, obey little. ~~Edward Abbey, via Walt Whitman

    by willyr on Mon Feb 24, 2014 at 01:45:13 PM PST

  •  I must admit I naively believed... (3+ / 0-)

    ...this would be a safe 9-0 victory for the petitioners, since the Tailoring Rule from the EPA just straight-out ignores the wording of the law.

    The heart of the industry petitioners’ case is the argument that stationary sources of GHGs cannot be regulated under the CAA because the EPA has only regulated the largest sources of them.
    The law states the volumes, numerically.  It is not for the EPA to alter the number legislation has set in stone, for their own ease.
    •  EPA would say their 'tailoring' rule (0+ / 0-)

      is a phased-in approach and that they were not trying to overturn the statutory major source definitions.

      •  Actually this cites back to Alabama Power (3+ / 0-)
        Recommended by:
        Meteor Blades, LakeSuperior, willyr

        in the PSD case from 25 years ago, where the DC Circuit speculated in a paragraph in the very back of the opinion that this could come up someday.....  

        http://law.justia.com/...

        278We understand that the application of BACT requirements to the emission of all pollutants from a new facility, no matter how miniscule some may be, could impose severe administrative burdens on EPA, as well as severe economic burdens on the construction of new facilities. But the proper way to resolve this difficulty is to define a de minimis standard rationally designed to alleviate severe administrative burdens, not to extend the statutory 100 or 250-ton threshold to a context where Congress clearly did not apply it. Just as for the applicability of PSD to modifications, the de minimis exemption must be designed with the specific administrative burdens and specific regulatory context in mind. This the Agency has failed to do. We do not hold that 100 tons per year necessarily exceeds a permissible de minimis level; only that the Agency must follow a rational approach to determine what level of emission is a de minimis amount.
        This is the argument:  does this precedent help or not?  Or is it just trivia?  SCOTUS will tell us on a Friday morning in June.  
  •  Fascinating analysis (2+ / 0-)
    Recommended by:
    thanatokephaloides, maggiejean

    If I read you right -- the best hope for the world is that the EPA lose this particular case.

    •  absolutely not (1+ / 0-)
      Recommended by:
      Pluto

      EPA losing this case would mean inability to require states air pollution control programs to include greenhouse gas emission limitations and best available control technology requirements.   That alone would be devastating to getting GHG emissions under control.

      •  I'm not so sure about that. (1+ / 0-)
        Recommended by:
        Bulldozer

        The best case for the world would be if ALL GHG emitters in the US were regulated.

        The case was brought against the EPA because it only regulated the largest emitters.

        The consequences of the EPA losing this case is that ALL emitters would be regulated. As per the article:

        The heart of the industry petitioners’ case is the argument that stationary sources of GHGs cannot be regulated under the CAA because the EPA has only regulated the largest sources of them.

        Ironically, if the EPA were to lose this case, the result could be a more burdensome regulatory program. In light of its Endangerment Finding, the EPA could [then] promulgate a NAAQS [National Ambient Air Quality Standards] for GHGs that would require every state to develop control plans to meet a uniform, national ambient standard. But because the harm GHGs do is global, it can be addressed in a less burdensome fashion, as the EPA has sought to do.

        ::

        In light of this better outcome for the US and the world, if the EPA loses this case:

        I hereby predict that the Supreme Court will find FOR the EPA.

        •  Oh, and stock buy alert! (0+ / 0-)

          Invest in low-emitter polluters. Their profits will not be bitten by regulations, which will allow them to out-perform the sector.

        •  You said: (1+ / 0-)
          Recommended by:
          Meteor Blades
          The case was brought against the EPA because it only regulated the largest emitters.
          That is only a Red State petitioner collateral attack issue.

          This case was brought so that state air pollution control programs could not be required by EPA to regulate greenhouse gas emissions in PSD and Title V permits issued under the Clean Air Act.  

          It is not beneficial If EPA loses this case because the result will not be to regulate all greenhouse sources.....the result is that state permits issued under the Clean Air act will not regulate greenhouse gas emission at all in their permits.

          An article stated:

          Ironically, if the EPA were to lose this case, the result could be a more burdensome regulatory program. In light of its Endangerment Finding, the EPA could [then] promulgate a NAAQS [National Ambient Air Quality Standards] for GHGs that would require every state to develop control plans to meet a uniform, national ambient standard. But because the harm GHGs do is global, it can be addressed in a less burdensome fashion, as the EPA has sought to do.
          If EPA loses the case, it could lose in a manner that the SC considered that EPA did not properly determine that prevention of significant determination requirements were triggered for purposes of stationary source emission regulation because greenhouse gases were not 'air pollutants' -- after all this is the fundamental question being raised in the appeal.  This kind of loss would ultimately lead to a complete obstruction of EPA carrying out stationary source GHG regulation.  

          EPA is not considering any national ambient air quality standards (NAAQS) for greenhouse gases, and a loss on the triggering issue would prevent greenhouse gases from being considered as 'air pollutants' for purposes of the procedures and adoption of NAAQS, including the necessary air quality criteria preliminary to NAAQS.  A loss before the court means that greenhouse gas emissions simply cannot be regulated as 'air pollutants' throughout Title I of the CAA.

          •  No (0+ / 0-)

            just means that EPA would have to find NAAQS endangerment.  A very easy thing to do, just a 3 year process.  

            And yes, a GHG NAAQS would open the door open for lots of things that some people may not want!  

            •  You said: (1+ / 0-)
              Recommended by:
              Meteor Blades
              just means that EPA would have to find NAAQS endangerment.  A very easy thing to do, just a 3 year process.

              The air quality criteria and National Ambient Air Quality Standards (NAAQS) process is separate from the endangerment finding done for mobile source emission regulation.

              No NAAQS can be developed on an air pollutant if the Supreme Court decides to grant petitioner's relief saying that greenhouse gases are not an 'air pollutant' within the meaning of the Clean Air Act's definition at 42 USC
              Sec 7602(g).   Such a decision forecloses listing of a pollutant as a criteria pollutant under 42 USC Sec 7408 and thus would prevent a NAAQS designation under 42 USC Sec 7409.

              And yes, a GHG NAAQS would open the door open for lots of things that some people may not want!
               

              A GHG NAAQS cannot be promulgated if the Supreme Court determines CO2e is not an air pollutant under the Act as NAAQS must come from a list of CAA regulated pollutants.

              Finally, there is not any basis or history or operational approach to adopt a primary GHG NAAQS under the Clean Air Act because there is no basis for showing that greenhouse gas emissions present in the atmosphere  affect respiratory health.   A basis for setting a primary NAAQS standard cannot be found in a pollutant having no effect on respiratory health.   A secondary NAAQS standard for greenhouse gas concentrations related to public welfare and adverse environmental effects is possible and EPA could promulgate such a standard.....but not if the Supreme Court finds that greenhouse gases are not 'regulated NSR pollutants' and are not 'air pollutants' under 42 USC sec 7602(g).

              Promulgation and publication of a secondary NAAQS for greenhouse gases would take quite a while and would, itself, be heavily regulated.   And publication of a secondary NAAQS itself is not binding on emission sources, as many futher state implementation control regulations would be needed to address a GHG state implementation plan under Section 110 of the the Act.

              •  correction (1+ / 0-)
                Recommended by:
                Pluto

                Promulgation and publication of a secondary NAAQS for greenhouse gases would take quite a while and would, itself, be heavily litigated and appealed.

                •  Well, for my part I was talking about (0+ / 0-)

                  …the long view, which I assessed that an EPA loss would benefit.

                  However, I don't even pretend to understand this to the depth that you clearly do.

                  I just want to reiterate -- based on corporate profits and Wall Street activity -- that the EPA is going to win this one.

                  And so will us cynical investors. Predictions are easy in the US high court. It's been bought and sold. Amen.

                  ::: pass the bong :::

  •  There are big stakes in this case. (1+ / 0-)
    Recommended by:
    Meteor Blades

    A loss in the Supreme Court in this case with the Court granting petitioners their requested relief would be a devastating blow to the Obama Administration's efforts to get greenhouse gas emissions under control.

    A loss in this case means that EPA could not require state air pollution programs to write new source review and Title V air discharge permits containing greenhouse gas emission limitations.   New source review permits with emission limitations are the fundamental means under the Clean Air Act for regulating air discharge sources.

    Without greenhouse gas emission limitations in permits, there can be no specification or enforcement of best available control technology requirements for greenhouse gas emissions.   Under the Clean Air Act, each prevention of significant deterioration permit is required to include a best available control technology determination for each significant pollutant emission increase....but losing the present case at the SC means losing the ability to impose greenhouse gas  emission limitations reflecting best available control technology.

    So, a Supreme Court loss would mean no ability by EPA to require state new source review and Title V permits to contain any mass per unit time (lb per hour, ton per year) greenhouse gas emission limitations at all.  

    A loss in this case along the lines requested by the petitioners also means deregulation of previously long-standing 'regulated NSR pollutants' like hydrogen sulfide, total reduced sulfur, landfill methane emissions etc.   Hydrogen sulfide has been a regulated pollutant since 1974.

    Loss of hydrogen sulfide and total reduced sulfur regulation under the Clean Air Act would be dramatically damaging actions to petroleum refinery and pulp/paper mill communities.

    •  If EPA lost with relief requested by petitioners (0+ / 0-)

      then EPA could not enforce or require that a greenhouse gas emissions source obtain a pre-construction permit under the prevention of significant deterioration requirements.

      If greenhouse gas emissions are determined not to be an 'air pollutant' under the Act then any such finding can be later used to challenge any attempt by EPA to publish either New Source Performance Standards or existing source guidlines for a non-CAA pollutant.

  •  Jeffrey Holmstead has made an entire career (0+ / 0-)

    out of promoting bad ideas for amending both the Clean Air Act and EPA air pollution discharge regulations.   He was a Bush Administration EPA deputy for air programs.

  •  Thanks you so much for this update, MB! (0+ / 0-)

    This is a hugely important case with a long and complicated history.  I am surprised (or maybe not, actually) that this story didn't get wider attention in the alternative media.

    Pessimism of the intellect; optimism of the will. - - Antonio Gramsci

    by lehman scott on Fri Feb 28, 2014 at 01:15:15 AM PST

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