You can't see the carbon dioxide rising from this power plant,
but it is adding molecules to the atmosphere anyway.
In a two-part decision
Monday, the U.S. Supreme Court ruled both against and for the Environmental Protection Agency's regulation of stationary sources of greenhouse gas emissions in the case of Utility Air Regulatory Group v. EPA
Scott Lemieux at The American Prospect writes that while the ruling unnecessarily restricts the EPA's authority, "the opinion could have been much worse." Indeed it could.
The court ruled 5-4 that the EPA cannot require facilities that are applying for operating or construction permits also to obtain greenhouse gas emissions permits if their only polluting emissions are those gases. But, by 7-2, with extremist Justices Samuel Alito and Clarence Thomas in dissent, the court majority stated that industrial plants and other large stationary sources that already must get permits for emissions of other pollutants can also be required to obtain permits for GHG emissions. The chief facilities affected by the EPA rules are oil and gas projects, cement plants and power plants.
The ruling seems likely to have a relatively small impact on the EPA's overall ability to curtail greenhouse gas emissions, and it will have no impact on pending rules to curb those emissions from new and existing electricity-generating plants. In reading from the bench the ruling he wrote for the court majority, Justice Antonin Scalia stated, "EPA is getting almost everything it wanted in this case." "Everything" means that the agency will still be able to regulate 83 percent of emissions from so-called "anyway" stationary sources—those that emit other pollutants in addition to greenhouse gases—instead of the 86 percent that it otherwise would have authority over.
The drop to 83 percent emerges from the majority's decision in the court's 5-4 ruling that the EPA was out of bounds when it "tailored" the thresholds for regulating greenhouses. Under the Clean Air Act, thresholds for regulating pollutants are 100 and 250 tons a year. But if those were applied to GHG emissions, tens of thousands of sources—most of them small businesses—would be governed under EPA regulations. To keep that from happening, the EPA had greatly raised the GHG thresholds, reducing the number of affected facilities to a few hundred.
Scalia wrote that allowing the the EPA's rewriting of the thresholds to stand "would contradict the principle that Congress, not the president, makes the law, and would undermine the separation of powers that is crucial to our constitutional system of government."
More analysis can be found below the fold.
Michael Lindenberger reported:
Justices Stephen Breyer, Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor joined in a partial dissent written by Justice Breyer. It argued that the EPA was right to target sources of greenhouse gas emissions, even if they did not emit traditional pollutants to the extent that they fell under the purview of the Clean Air Act. Breyer also argued that the EPA was within its authority to tailor the language of its permitting thresholds to make them reasonable for greenhouse gas emissions. Scalia and the majority rejected that, writing that the changes amounted to given the EPA authority to rewrite the statute.
Two conservative justices—Clarence Thomas and Samuel Alito—wrote a partial dissent that would have gone much further in limiting the EPA’s authority to regulate greenhouse gases. They adopted an argument initially made by Attorney general Greg Abbott of Texas, who argued that the 2007 decision in EPA v. Massachusetts should be overturned. That’s the ruling where the Supreme Court held that the EPA had an obligation to decide whether greenhouse gases emitted by vehicles should be considered a pollutant, IF so, the court ruled, the EPA was within its authority to regulate their emission.
Here's Lemieux again:
As Justice Breyer notes in his persuasive dissent, the EPA's response is preferable to Scalia's reading of the law: "What sense does it make to read the Act as generally granting the EPA the authority to regulate greenhouse gas emissions and then to read it as denying that power with respect to the programs for large stationary sources at issue here?" The agency has to exercise discretion either way, and it makes much more sense for the EPA to reconcile the threshold for regulation with the intent of Congress than for the EPA to not regulate sources Congress intended the EPA to regulate. As Breyer observes, "[f]rom a legal, administrative, and functional perspective—that is, from a perspective that assumes that Congress was not merely trying to arrange words on paper but was seeking to achieve a real-world purpose—[the dissent's] way of reading the statute is the more sensible one."
"Today is a good day for all supporters of clean air and public health and those concerned with creating a better environment for future generations," the EPA stated in a press release. "The Supreme Court's decision is a win for our efforts to reduce carbon pollution, because it allows EPA, states and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources."