Congress, Courts, Environment, Politics, Society, Supreme Court

Supreme Court Limits EPA Authority In Regulation Of Greenhouse Gases

scalia220px-AlfedPalmersmokestacksAssociate Justice Antonin Scalia eked out a victory against the Environmental Protection Agency in a 5-4 opinion today limiting the EPA’s ability to regulate greenhouse gases. However, the decision however does not prevent the EPA from using other means to regulate the pollutants linked to global warming. Specifically the vote means that the Clean Air Act does not allow for the EPA require a point source to obtain a PSD or Title 5 permit. The vote was a straight ideological division with Justice Anthony Kennedy joining his conservative colleagues in the majority. The majority held that “A brief review of the relevant statutory provisions leaves no doubt that the PSD program and Title V are designed to apply to, and cannot rationally be extended beyond, a relative handful of large sources capable of shouldering heavy substantive and procedural burdens.” Utility Air Regulatory Group v. Environmental Protection Agency is the lead case of six cases on the regulation of greenhouse gases.


The decision reverses part of the 2012 opinion supporting the authority of the EPA on requiring permits for some industries. However, the difference may be quite small. The EPA interpretation allows the agency to reach some eighty-six percent of the targeted industrial sources while other means would still allow it to reach eighty-three percent.

As we discussed earlier, the Supreme Court ruled previously that EPA has the authority to regulate greenhouse gases as a threat to human health and to the environment. The EPA proceeded in June 2010 to deal with pollution from cars and trucks (“mobile sources”) and then larger, stationary sources of greenhouse gas emissions. That latter move prompted a determined challenge from the all-powerful utility and energy industries both in Congress and the courts. The case saw a division of states, with California and New York supporting the administration. Scalia held that the D.C. Circuit failed to make a finer distinction between pollutants:

The Court of Appeals reasoned by way of a flawed syllogism: Under Massachusetts, the general, Act-wide definition of “air pollutant” includes greenhouse gases; the Act requires permits for major emitters of “any air pollutant”;therefore, the Act requires permits for major emitters of greenhouse gases. The conclusion follows from the premises only if the air pollutants referred to in the permit requiring provisions (the minor premise) are the same air pollutants encompassed by the Act-wide definition as interpreted in Massachusetts (the major premise). Yet no one—least of all EPA—endorses that proposition, and it is obviously untenable.

The Act-wide definition says that an air pollutant is“any air pollution agent or combination of such agents, including any physical, chemical, biological, [or] radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” §7602(g). In Massachusetts, the Court held that the Act-wide definition includes greenhouse gases because it is all-encompassing; it “embraces all airborne compounds of whatever stripe.” 549 U. S., at 529. But where the term “air pollutant” appearsin the Act’s operative provisions, EPA has routinely given it a narrower, context-appropriate meaning.

Recall that in April, the Court handed a big victory to the Administration in another case in upholding the regulation over 28 states in the Midwest and South to reduce ozone and fine particle emissions that flow north and east into other states.

The Court closed the door on PSD and Title V but left another open:

To sum up: We hold that EPA exceeded its statutory authority when it interpreted the Clean Air Act to require PSD and Title V permitting for stationary sources based on their greenhouse-gas emissions. Specifically, the Agency may not treat greenhouse gases as a pollutant for purposes of defining a “major emitting facility” (or a “modification” thereof) in the PSD context or a “major source” inthe Title V context. To the extent its regulations purport to do so, they are invalid. EPA may, however, continue to treat greenhouse gases as a “pollutant subject to regulation under this chapter” for purposes of requiring BACT for “anyway” sources. The judgment of the Court of Appeals is affirmed in part and reversed in part.

Here is the opinion.

145 thoughts on “Supreme Court Limits EPA Authority In Regulation Of Greenhouse Gases”

    1. Well, if you are so proud of it, prove it. Koch Bros are offering money for people to actually prove it.

  2. “The peer-review process in paleoclimatology is a joke”

    That’s a joke. If you really think so, though, why not bet on it?

    1. Paleoclimatology is a very small, very incestual field. They all peer-review each others stuff. Anyone who counters them is driven from the publishing game. We found this out from the released emails between Michael Mann and his band of merry hoaxers.

  3. Annie, Democrats have been more than obliged to play stooge for the military-industrial complex. Note that your preferred candidate Hillary (from previous comments) voted for Iraq (1), has supported arming rebels in Libya and Syria, which is now coming full circle.

    Pretending that an “us vs. them ” exists between democrats and republicans seems a bit silly. The only person/group that has consistently stayed on point about staying out of needless wars and foreign conflicts unrelated to US interests have been libertarians (Paul).

  4. Paul C. Schulte

    Dredd – when so-called scientists don’t follow the scientific method or allow their work to be examined by others freely …
    ==========================
    It is how you decide “when” that is the problem.

    The laws of when:

    “The First Law of ‘When’: the more critical an issue is to the future of our civilization, the difficulty of determining when that critical issue will take effect tends to increase exponentially.

     The Second Law of ‘When’: the greater the amount of time it takes for that critical issue to play out completely tends to exponentially diminish Civilization’s grasp of that critical issue.

     The Third Law of ‘When’: the more destructive the impact which that critical issue would have on civilization tends to exponentially increase the time when that critical event will be understood to have begun to take place.” – Dredd

    (Quotes).

  5. Yeah, Annie, I saw Dicky Cheney blathering on… not wanting to talk about 10 or 12 years ago… Odd, that. I’d think he’d be all for defending his BS.

    Authoritarians gotta get their war on. And their torture.

  6. Jim22: “It’s nice to see the EPA get pushed back even if it is just a little.”

    Where do you get off asserting a right to spoil the commons? Can you people not get rich without cost-shifting your negative externalities onto the rest of us?

  7. Scott, these same folks tend to want to go back into Iraq with guns blazing, and ya know the Russian Bear is restless! Never met a war they didn’t lust over.

  8. Jim22: “There is no sense in arguing the religion of global warming.”

    Religion cannot prove the existence of God. Science can prove the existence of global warming.

    If you don’t think so, why not bet? What are you guys afraid of? That you’re as wrong about this as you were about Iraq?

  9. Dredd, because science is eeeevil, to Oil Qaeda. It behooves them to keep the flat earthers believing in the religion of Black Gold and SUVs. Never mind their grandchildren that they always cry about when it comes to the deficit. Who cares about the deficit when there won’t be enough dry land to keep the earth’s humans on? Who cares about farm produce, honey bees, just learn to love seaweed, or blue green algae.

  10. Schulte: “when so-called scientists don’t follow the scientific method or allow their work to be examined by others freely”

    The follow the method and they allow their work to be examined. It’s called peer review. You’re lying.

    And if you don’t think it’s real, why not bet? Afraid to put your money where your mouth is?

    1. Michael Mann refuses to allow his data to be released. He just survived another law suit trying to pry the data in the public. The peer-review process in paleoclimatology is a joke as is the editing of the IPCC report.

  11. I now know why the Flat Earthers, including the Supreme Five, are called “crazy” rather than “manic”:

    “I distinguish between maniacs and crazy people. A maniac will beat nine people to death with a steel dildo. A crazy person will beat nine people to death with a steel dildo, but he’ll be wearing a Bugs Bunny suit at the time.” – Carlin

    1. Dredd – when so-called scientists don’t follow the scientific method or allow their work to be examined by others freely, then they are open to ridicule and disdain.

  13. Nick, I suggest you just take Dennis Millers advice on the global warming debate and just say, “Yes, I believe in man made global warming, it is the most important issue we face as a human race”. There is no sense in arguing the religion of global warming.

  17. Associate Justice Antonin Scalia eked out a victory.

    Well-put.

    With the court dominated by corporate hacks, the case was merely a game between the corporations and the EPA. Rigged in advance.

    The supreme court generally no longer functions as a balance of power. Indeed, so much for any balance of power…it’s essentially corporate power- all branches of “our” government- vs the public.

  18. Svoogle, True enough. It’s nice to see the EPA get pushed back even if it is just a little.

  19. Svoogle, I hope your are correct. Phrenology was accepted science, as was blood letting, for decades!

  20. Ahh, I am looking forward to the days when we will look back and laugh about the times when a sophisticated and ingenious campaign was able to convince us that carbon dioxide is a “pollutant”. It will be like us looking back now at the folks in the Middle Ages who thought taking a bath makes you sick.

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