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. Paul C. Schulte

    An update on the Michael Mann suits.

    …
    =============================
    That idiot John “John Boy” O’Sullivan says there was “Massive counterclaims, in excess of $10 million … by Mark Steyn.”

    Steyn isn’t even a defendant in the case, so he can’t file a counter claim.

  2. The right wing obsession with Kool Aid fascinates me. But their obsession with incest is troubling considering how limited their gene pool is already.

    Forget the global warming, Jim, I want to know where you get off thinking you can cost-shift ANY negative externality onto the rest of us.

    Now, back to the warming… How much will you bet?

  3. Paul, You fell for their trap, there is no sense in arguing with anyone here. They drank the kool Aid. You would be better off beating your head against a tree. Waite better not use a tree, the EPA might fine you.

  4. Scott Supak

    Dredd, what really pissed Pat Michaels off about his bet with me is that he’d already agreed to the bet before he learned my charity (to whom the loser will send $250) is the Climate Scientists Legal Defense Fund.
    ===========
    Excellent.

  5. A final word on libel per se in Michael Mann, Phd. v The National Review, et.al. and those here not yet wised up:

    Id. at 1233. The statement “he has molested and tortured data” could easily be interpreted to mean that the plaintiff distorted, manipulated, or misrepresented his data. Certainly the statement is capable of a defamatory meaning, which means the questions of whether it was false and made with “actual malice” are questions of fact for the jury. 7 A reasonable reader, both within and outside the scientific community, would understand that a scientist who molests or tortures his data is acting far outside the bounds of any acceptable scientific method. In context, it would not be unreasonable for a reader to interpret the comment, and the republication in In Count VII, plaintiff alleges that CEI published, and National Review republished, the following defamatory statement: “Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and
    planet.” The allegedly defamatory aspect of this sentence is the statement that plaintiff “molested and tortured data,” not the rhetorically hyperbolic comparison to convicted child molester Jerry Sandusky. 6 To “molest” means “to annoy, disturb, or persecute esp. with hostile intent or injurious effect.” Webster’s New Collegiate Dictionary 741 (1977). To “torture” means
    “to twist or wrench out of shape”; and to “distor[t] or overrefin[e] a meaning or an argument.”

    National Review, as an allegation that Dr. Mann had committed scientific fraud, which Penn State University then covered up, just as some had accused the University of covering up the Sandusky scandal. For many of the reasons discussed in Judge Combs Greene’s July 19 orders, to state as a fact that a scientist dishonestly molests or tortures data to serve a political agenda
    would have a strong likelihood of damaging his reputation within his profession, which is the very essence of defamation. See Payne v. Clark, 25 A.3d 918, 924 (D.C. 2011) (citing Clawson v. St. Louis Post-Dispatch, LLC, 906 A.2d 308, 313 (D.C. 2006)). Viewing the alleged facts in the light most favorable to plaintiff, as the court must on a motion to dismiss, a reasonable jury is likely to find the statement that Dr. Mann “molested and tortured data” was false, was published with knowledge of its falsity or reckless disregard of whether it was false or not, and is actionable as a matter of law irrespective of special harm.

    Just Sayin’ … zip it.

    1. Dredd – by the time National Review gets done with him he won’t have the money to prosecute the suit much less sue me. Saying that he hides his data is the truth. The defense to either libel or slander is ‘the truth.”

  6. They show their work, Schulte. Mann is not the only climate scientist. You can smear the source all you want (genetic fallacy again–you sure do love that one) but you’re not arguing the facts.

    CO2 traps heat. It’s a fact. We’re over 400ppm again last month.

    I will bet on future high temps. How about you?

  7. Paul C. Schulte

    Dredd – ad hominem attack.
    =====================
    Yes, your Michael Mann attack is not only ad hominem, it is defamatory and actionable.

    My pointing it out is for your benefit.

    1. Jim22 – Michael Mann is being counter- sued for $10 million because he lost a suit, actually failed to defend it, in Canada. It really puts him at risk here since he was required to show the metadata behind the ‘hockey stick’ and he failed to appear to show the data. In fact he was defending a suit at his old employer to hid the data.

  8. If I were some people here, and I am not, I would stop the libel of Michael Mann and get real:

    Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice [by journalists], they are actionable. Viewing the allegations of the amended complaint in the light most favorable to the plaintiff, a reasonable finder of fact is likely to find in favor of the plaintiff on each of Counts I-VI, including the Intentional Infliction of Emotional Distress alleged in Count VI as to both sets of defendants.

    (Michael Mann, Phd. vs The National Review, et. al.).

  9. Before they took Intrade away, I was betting on global warming there (GISS temps). I’d bet the monthly anomalies, the annuals, and even some in the long term bets, like 2019 to be warmer than 2009… There’s a lot of noise in the monthly anomalies, of course, but they were fun to bet if you had a system. The “over 0.75 anomaly” for each month was selling at about $0.25 a share ($10 pay off), and I’d always buy a few more every month at that price as the long shot.

    Last month was a 0.76.

    There were guys in there who were swearing we’d never see a 0.76. They would bet $9.75 to win a quarter they were so sure.

    Oh how I miss Intrade.

  11. Annie, Troy is suffering from the same problem as all Glibertarians: progressive blindness syndrome. They hate Democrats so much that it’s hard for them to admit that there’s a huge block of Democrats who don’t vote for war, who voted against renewing the Patriot Act (70% of Dems did, only 14% of Republicans did), and who voted to keep the DEA out of state medicinal marijuana programs (91% of Democrats in the house voted for that bill, only 22% of Republicans did).

  12. Dredd, what really pissed Pat Michaels off about his bet with me is that he’d already agreed to the bet before he learned my charity (to whom the loser will send $250) is the Climate Scientists Legal Defense Fund.

  13. Troy, I’ve haven’t stated my preferred candidate is Hillary Clinton, I’ve been saying it’s Elizabeth Warren.

  14. Paul C. Schulte

    Paleoclimatology is a very small, very incestual field …
    ====================
    Yep.

    You, Larry, Curley, and Moe Scientists Innernachural.

  15. The Koch brothers are not offering money to anyone who can prove it. It has been proven. If you don’t think so, bet on it.

    What the Koch boys are doing is public relations. This guy I linked to is offering 10k to anyone who can use the scientific method to prove it isn’t happening.

    So, step up.

    1. If they can prove it, then there is no problem showing the data.

  16. Paul C. Schulte.

    Your errors concerning Michael Mann are informative.

    RE: the law, the facts, and Michael Mann:

    Back in 2012, after the Competitive Enterprise Institute and the National Review each published pieces that likened climate scientist Michael Mann to a child molester and called his work a fraud, Mann fought back with a lawsuit, charging them with libel. Now, in a preliminary ruling, a Superior Court Judge has sided with Mann, paving the way for the case to move forward and potentially setting an important precedent about the limits of disinformation.

    The ruling, in essence, reinforces the wise adage attributed to former New York Sen. Patrick Moynihan that, while everyone is entitled to his or her own opinion, we are not each entitled to our own facts.

    (Live Science). I am glad that Michael Mann sued the bastids.

  18. troy

    …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).
    ====================
    That is utterly false.

    Paul is a republican last time Bugs Bunny checked.

    They are leaders in the war on the Earth (global warming pollution supporters), which is a war against all people everywhere.

  19. troy: “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”

    Bull. Like so many Glibertarians, you find the existence of progressive, anti-war Democrats problematic, so you ignore them.

    And while we’re at it… show me Rand Paul being against the Iraq war before we went in….

  20. Paul C. Schulte

    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.
    ===============
    Translation: “Michael Mann is ‘all scientists’, except ‘the three true scientists’ (Larry, Curley, and Moe) who work for and are paid by Koch Bothers.”

    That is only true if you say it while wearing a Bugs Bunny suit while praying Frisbee mantras.

    “Frisbeetarianism is the belief that when you die, your soul goes up on the roof and gets stuck.” – Carlin

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