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. People do not care much about a world wide phenomena which will affect the next generation but maybe not me. Yeah, the Chinese are dying of pollution. The ducks are not flying as far north as they used to and the shores of Florida are shrinking. But I am 65 and the shoreline will lose a foot in the next twenty years and in the meantime I will lose three inches in height, my sexual appetite, my poodle, my ability to see through my telescope, my 65 Mustang, my Smartphone to spies, and my good looks. What do I care really about global warming when all else fails? Schmucks who moan about global warming are the types who move into nursing homes to watch tv with a group of other schmucks.

    1. Al – as a historian I know that Cleopatra’s palace at Alexandria is actually underwater. Now it did not go underwater in our life-time, but probably during the Medieval Warming Period. So, the real question is, who do we blame and at what cost do we blame them?
      I agree that China is a mess and I, although invited to visit, will not go there. It would shorten my life. Animals change patterns for a variety of things we have done to the planet. You have to prove more causality then what you have presented.

  2. MarieK, Repeat after me, “Yes, I believe in man made global warming, it is the most important issue we face as a human race.” You will feel better than arguing against the new religion.

  3. A couple of years back, I was attending a family wedding in Jefferson, Wisconsin. Hanging around the bar, I learned that several were unemployed; some of them older, a couple of them young. A few more were employed part-time, and a few others were employed part of the time. None of them were in their conditions by choice, they missed the go-go years of the Clinton era. But even during the hey-days, the best that most of them ever did in a year was $50,000; not too shabby, but nowhere near a top earning income at the time and certainly not sufficient to have socked away enough to weather the financial meltdown at the end of the Bush regime. They were all hit hard to varying degrees.

    The conversation rolled around to politics. They despised Obama, of course, but they had a special gripe about…Dodd-Frank of all things.

    And I’m thinking, here’s a bunch of guys from the heartland who have practically little, if any, tied up in investments, who have suffered severe economic harm as a result of Wall St. chicanery, and now stand to be screwed again some time in the near future by the same forces, and they are bitterly decrying this nominal banking regulation as a communist/socialist plot.

    When I pointed out that the system had privatized profits and socialized the losses, a kind of heads they win tails we lose scenario, I could tell that they absorbed the idea only enough to formulate a retort. They wouldn’t be talked out of the idea that Dodd-Frank, and Glass-Stegall for that matter, was the result of an anti-capitalist conspiracy to destroy America. And I thought to myself, you guys are a bunch of fools.

    That’s the feeling I get when I read and hear comments that deride climate change as non-existent, that CO2 is benign, that years from now we’ll look back and laugh at how silly we were, as if climate change were as unfounded as Y2K.

    Have another drink, boys.

  4. Any weakening of the EPA by the Supreme Five conservatives comes at the worst time for it in history:

    With records dating back to 1880, the combined average temperature over global land and ocean surfaces reached a record high for May, at 0.74°C (1.33°F) higher than the 20th century average. This surpassed the previous record high anomaly of 0.72°C (1.30°F) set in 2010. Four of the five warmest Mays on record have occurred in the past five years: 2010 (second warmest), 2012 (third warmest), 2013 (fifth warmest), and 2014 (warmest); currently, 1998 has the fourth warmest May on record. Additionally, May 2014 marked the 39th consecutive May and 351st consecutive month (more than 29 years) with a global temperature above the 20th century average. The last below-average global temperature for May occurred in 1976 and the last below-average temperature for any month occurred in February 1985.” -(NOAA)

    Hottest May global temperatures of all relevant history:

    2014 – hottest May in relevant history
    2010 – second hottest
    2012 – third hottest
    1998 – fourth hottest
    2013 – fifth hottest

  5. When Scalia cuts an artFay in Conference, it is referred to by Ginsberg as a Greenhouse Gas Leak. So says Alito’s clerk in her emails which were stingrayed.

  6. Jim22

    Yes, I believe in man made global warming, it is the most important issue we face as a human race
    Good for you!

    Just remember that the software is composed of modules written by several different developers, both in the US and in Europe.

    The Weather people use them all and give them a weighted average based on past performance.

    The individual algorithms do not predict the same path, but together with the weighed historical averages, they save many, many lives of those who heed the warnings.

    Without them the graveyards would be much larger much faster.

  7. Yes, I believe in man made global warming, it is the most important issue we face as a human race

  8. Jim22

    Dredd … It’s not all that impressive that they could tell us where Sandy was going once it was a well established storm. Hurricane path predictions more then a 2 day period are more of a guess than anything else.

    For you it is a guess.

    They predicted exactly where Sandy would turn west from its north heading and make landfall in New Jersey.

    Your argument is bogus because you do not understand the software involved and have a bias.

  9. “I have never seen anyone so desperate to make a bet. ”

    Who’s desperate? I’m always willing to make that bet, and I’m certainly not desperate. The desperation is coming from those whose arguments are shown wrong time and time again, who can only weasel around with whiny words about why they’re not willing to put their money where their mouths are.

  10. “You are also incapable of making a comment without a personal attack.”

    What attack? I honestly want to know if you have ever denied climate science while riding the dinosaur at the creationism museum.

    Your denial of the facts will lead to much death and destruction, and I’m supposed to be nice to you? The problem I have with liberals is that too many of us have been pushovers for you hippie punchers for too long. Time more of us took a stand, like I did many times against your little war in the Middle East.

    You know, when I was physically assaulted by authoritarians like you for being against borrowing trillions and killing hundreds of thousands because you were all to eager to show how right you were about what? WMD? Ties to Al Qaeda?

    What did all those people die for?

    What will all those future people die for?

    So you can save a few pennies here and there by cost shifting your negative externalities onto those who can least afford to pay for them?

  11. As for racing, I’m a big fan. More of a formula one guy. Used to drive the fuel truck for a classic car racer across Baha. Lots of fun.

    I know that we’ve gotten many of our fuel economy and safety ideas from racing.

    All fossil fuel is solar power. Why not just go with the cleaner version? After all, even if you don’t believe in evolution, er, global warming, there’s lots of other things we spew into the commons that kill thousands every year…

    Here’s the future:

    National Electric Drag Racing Association

  12. “If Yellowstone blows we are talking nuclear winter for several winters and the destruction of much of the West.”

    You don’t get it, do you? Your only hope for a cooler world is a super volcano that would cause a mass extinction event.

    Do you openly hope for that while riding the dinosaur at the creationism theme park?

    “Here is AZ we are expecting a wet summer. And probably a wet winter, so our temperatures will be down.”

    What does that have to do with anything?

    But for the record, I’ll bet your rainfall is below normal. I’ll make that same bet for the next 20 years at slightly increased amounts wagered each year.

    1. I have never seen anyone so desperate to make a bet. You are also incapable of making a comment without a personal attack.

  13. Scott,

    Ok. You didn’t like the triple turbo diesel car prize. How about a free trip to China? FYI, don’t bad mouth them over there. They arrest guys like you. Want to bet?

  14. Here is AZ we are expecting a wet summer. And probably a wet winter, so our temperatures will be down.

  15. “the real climate article basically agrees the models are wrong”

    Face palm. I’m thinking science isn’t your strong suit, Schulte? Do you deny evolution?

    Models make predictions with confidence levels:

    What part of that says they got it wrong?

    What it says is that they were right, but the actual temps have been slightly lower than expected.

    Nice try.

    Several new papers have shown that the heat is going into the oceans. Years ago, the models didn’t take into account how much heat is going into the oceans.

    And now that there’s a lot less ice up top to reflect the heat back, and a lot more dark water that absorbs it, it’s going to get worse.

    And the Tundra melts and releases methane, and it gets worse.

    And the land ice on Antarctic is sliding faster, and it gets worse.

    But you were willing to blow trillions of dollars and hundreds of thousands of lives on Iraq–borrowed money no less… So why on earth would I think you can think at all?

    1. Supak – told you before, will tell you again HO HUM HO HUM HO HUM

  16. This is how conservatives argue:

    ““End of the world” hysteria”

    Who said anything about the end of the world? The world will still be here. So will we. But the costs, in lives and treasure, will be enormous.

    You know why? Because, as TWO conservatives here have both agreed (with physics), CO2 traps heat.

    What are we doing? Adding more CO2.

    What does that mean? More heat.

    We’re already seeing it. Hottest May ever. Pick your temp record. Use HadCRUT if you want, since there’s no extrapolation. They all show the same thing.


    Just as predicted.

    But, hey, Yellowstone could blow tomorrow, and that would mean LOTS of cooling.

    So, I wonder… when did the word “conservative” start to mean “we’ll blow trillions of dollars and hundreds of thousands of lives on Dick Cheney’s lies, but your carbon tax–even if traded for a lower corporate rate–will have to be pried from our hot, moldy, damp dead hands”?

    1. If Yellowstone blows we are talking nuclear winter for several winters and the destruction of much of the West.

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