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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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