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. The Middle East is exploding but John Kerry is doing his Fat Al Gore lying act. John “Man Up” Kerry felt compelled to pull a number out of his ass. He said “99% of our countries scientists believe in climate change.” LOL if it wasn’t so idiotic.

  2. Paul, Have you ever seen the hurricane prediction paths that the computer models make? You might as well just throw a dart at the map. I use CFD flow modeling software for work. Nothing nearly as complicated variable wise as Earth and there isn’t an engineer in our facility that will bet their job on the results being the same as the real world. We use the models to push us in a particular direction in our design process. But the real world always throws you a curve.

  3. Scott, why would I bet on something that I don’t believe we have any control of either way? Climate changes, it might get warmer, it might get cooler. Saying put up or shut up doesn’t win you an argument. I also don’t believe I am cost shifting any more than you do. You just pretend to think that all of your actions are neutral.

  5. Paul C. Schulte

    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.”
    ===========================
    I notice that Michael Mann, Phd. has now filed a motion to dismiss the counterclaim of Steyn.

    Mann’s lawyers ask for costs per the D.C. SLAPP law.

    Will Steyn re-hire his lawyers?

    1. Dredd – have no idea what is going to happen. Much has changed since the end of the U. Va case, the Canada case, etc. There is some thought that the judge clearly overstepped, but that appeals do cost money.

  8. I notice that the lawyer (David Rivkin) for the national review wrote the torture memos and believes a president can do just about anything.

  10. Schulte, who once copied and pasted from Wikipedia, a source he disparages, without citing it, now steals from Annie again:

    Supak – HO HUM HO HUM

    Just to be clear, this is a “ho hum” to the damage the planet and it’s people will suffer because of Schulte’s greed and cost-shifting.

  12. Paul C. Schulte

    Dredd – you are always allowed to defend yourself. You do not need an LLM or JD.
    ===================
    Yes.

    But he had lawyers as did the national review until they lost and now fact a jury (“The National Review changed its lawyers, and Steyn decided to represent himself in court. If the court declines further appeal, the case will move to discovery“).

    That is an indication that they cannot get along with lawyers who “lose on their behalf” which is indicative of hubris and ignorance.

    Their lawyers did not libel Michael Mann, Phd., those luddite libertards did.

    IMO, they are in for a sound thrashing if they continue to double down.

  13. Spinelli, Christopher Booker is a joke. But I’ll go for the meat of the issue (it’s not the genetic fallacy to point out that someone has a horrible track record on a issue):

    http://www.telegraph.co.uk/earth/environment/10916086/The-scandal-of-fiddled-global-warming-data.html

    > Goddard shows how, in recent years, NOAA’s US Historical Climatology Network (USHCN) has been “adjusting” its record by replacing real temperatures with data “fabricated” by computer models.

    Computer models don’t “fabricate.” They extrapolate. GISS temp does the same thing out over the poles where we don’t have instruments.

    SO, if you don’t like those data sets, let’s use HadCRUT4. OK? Ready to bet now?

    Funny how you guys love science when it’s pushing a drag racer, but hate it when the idea of a carbon tax (even if it’s traded for a lower corporate tax as Laffer proposes) scares the hell out of you.

    If only you’d been so skeptical before we were lied into Iraq.

    1. The computer climate models cannot even predict the current climate change correctly.

  14. Hey, SPINELLI! You want to bet or not? The deniers prefer the HadCRUTx datasets. That’s what Michaels and I bet on:

    http://www.drroyspencer.com/2013/09/pat-michaels-bets-on-25-years-of-no-warming/

    There’s the link AGAIN, Jim22… since you apparently didn’t read the comment where I AGAIN posted the link.

    “How will we know it wasn’t natural causes either way?”

    The bet is whether it’s getting warmer, not why.

    But if you’re interested in the why, CO2 levels now at 400ppm, a level we haven’t seen in a good long time, and it’s all because of us releasing all that stored carbon, ie, cost shifting negative externalities, as usual, on those who can least afford it.

  16. Scott, It’s a stupid bet. What’s the time frame? Who’s data do we get to use? How will we prove it one way or the other? How will we know it wasn’t natural causes either way? Again, it is a stupid bet and just throwing it out there doesn’t make your junk science any more factual.

    I’m sure if you look at your life you do shift the costs of something in it.

  17. Paul C. Schulte

    Dredd – Steyn is a defendant in the suit.
    ========================
    Why is he appearing pro se in a case like this?

    Is he a lawyer or does he have a JD?

    1. Dredd – you are always allowed to defend yourself. You do not need an LLM or JD.

  19. Obviously the alarmists never heard the Chicken Little “the sky is falling” story in grammar school.

  20. As Malcolm X would say, “You been lied to, you been had, you been hoodwinked!”

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