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
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.