Supreme Court to Tackle EPA Regulation of Greenhouse Gas Emissions

In its 2007 decision in Massachusetts v. Environmental Protection Agency, the U.S. Supreme Court handed federal regulators a landmark victory by holding that the “sweeping definition of ‘air pollutant’” in the Clean Air Act allowed the EPA to regulate the emission of greenhouse gases. On Monday, the Supreme Court will return to this contentious area when the justices consider a new case testing the bounds of the EPA’s regulatory reach.

At issue in Utility Air Regulatory Group v. Environmental Protection Agency is the EPA’s 2010 determination that the Clean Air Act allows the agency to impose new permitting requirements on stationary greenhouse gas emitters, such as coal-fueled power plants. According to the EPA, although the language of the federal law may not specifically mention this regulatory expansion, a fair interpretation of the language allows for the new regulations.

The Utility Air Regulatory Group and the other legal challengers take the opposite view. As they see, the EPA has exceeded its statutory powers and effectively rewritten federal law to suit its purposes. As the challengers told the Court in one legal filing, “EPA freely acknowledged that regulation of carbon dioxide emissions under the Title I and Title V permitting programs subjects ‘an extraordinarily large number of sources’ to the [Clean Air Act] for the first time, contrary to explicit congressional intent to cover only a limited number of large industrial facilities.”

The case therefore not only deals with the hot button issues of environmental regulation and climate change, it also raises significant questions about whether an executive branch agency violated the separation of powers.

A decision is expected by June.

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  • UnCivilServant||

    The court has been notably flaky on this matter of late, so I can't hazard a prediction.

  • anon||

    Calling this one: "It's a tax."

  • John||

    This is one case where legislative history and intent is relevant. No question that the language is vague and Congress intended to give EPA some leeway to use its expertise to regulate the right emissions. But did that leeway include CO2? The entire history and Congressional intent would say no.

  • anon||

    This is one case where legislative history and intent is relevant.

    I disagree, John; the only thing that kept this country functioning as long as it has was enumeration of the specific powers any new regulatory agency would have. When you start allowing "leeway," it opens the door to a one-branch ruled government, very similar to what we have now. And you see how that's turning out.

  • John||

    You are talking about a different issue. Your point calls into question the authority of the executive to issue regulations at all. That is a fine point and perhaps a valid one. But it is not one the Court is going to even address here much less endorse.

    The issue here is not whether Congress can give such leeway, it is whether the leeway includes CO2. And in that case the language of the statute is unclear. And where statutory language is unclear, it is perfectly appropriate to look at legislative and intent and history to figure out what they meant.

  • anon||

    That is a fine point and perhaps a valid one. But it is not one the Court is going to even address here much less endorse.

    Yeah, you're right about that; I do recognize it as a separate issue and (in this specific case), the only one really worth addressing. Determining "intent" 40 or 50 years after the legislation was passed is a futile effort; that's why you rely on what words and reasoning were actually given.

    The issue here is not whether Congress can give such leeway, it is whether the leeway includes CO2.

    Yeah, which makes me sad, because this is a red herring in a far larger issue.

  • UnCivilServant||

    As a rule of thumb, the current court looks for the smallest possible ruling to get the case off their docket. I think it's a symptom of the ideological split. The smaller the scope required, the more they like it.

  • Francisco d Anconia||

    I agree. They'd rather nibble at the edges than actually address the 800 pound gorillas (plural) in the room.

    Chickenshits. Why address the unconstitutional notion that Congress has the power to delegate its authority when we can fuck around with each specific law?

  • tarran||

    I think the MA vs EPA lawsuit will turn out to be one of the biggest examples of the friendly lawsuits the EPA uses to get the courts to order it to do what they want to do but lack the authority to do.

  • John||

    Yeah. Sort of puts a different spin on the Court's obsession with 'standing' in every other area doesn't it? The point of standing is to prevent shame law suits.

  • tarran||

    This country would really benefit from an Edward Snowden in the EPA.

  • John||

    The two cultures (the NSA and EPA) are similar. Both agencies are filled with fanatics who are convinced only they stand between the nation and certain doom.

  • anon||

    And yet none of them fully realize just how entirely fucking useless they both are.

  • Invisible Finger||

    I believe that is a prerequisite.

  • anon||

    “The level of coordination in these documents is shocking,” EELI said in a statement.

    Really? This asshole is surprised people in power might collude with other like-minded people to achieve ends that would otherwise not be achievable?

    Fucking idiot.

  • tarran||

    He's not an idiot... he's commenting on the fact that the EPA administrators are blatantly violating Federal law and civil service regs. Not as in getting in a gray area, but actually moving into areas well known to be black.

    Their brazenness is shocking.

  • John||

    They have total media cover and all of the Dems in Congress willing to do the same. It is not like they are in any danger of being held accountable.

  • anon||

    Their brazenness is shocking.

    My point being it's naive to assume that people in power don't/won't (pick one) abuse their power. The revelation of its occurrence should shock absolutely nobody. Appalling? Yes. Shocking? Hardly.

  • ||

    It's not shocking to me at all, and I wouldn't expect it to be shocking to you either. This is what bureaucrats and regulators do.

  • The Late P Brooks||

    Limits are so twentieth century.

  • anon||

    Limits are only for racists and sexists!

  • Fist of Etiquette||

    ...contrary to explicit congressional intent to cover only a limited number of large industrial facilities.

    Explicit congressional intent don't mean what it used to.

  • Swiss Servator, mehr Käse!||

    Their pens may have said "no", but the "yes" was upon their lips still?

  • anon||

    To be fair, it's hard to see what their lips were saying while they were pressed firmly against the president's ass.

  • Sevo||

    Bad news.
    Roberts will find it can be read as a tax, and we're in deep stuff.

  • anon||

    Bout 30 minutes late on that one buddy!

  • The Late P Brooks||

    Meanwhile, down on the farm...

    A Nebraska judge’s decision throwing out the Keystone XL pipeline route in the state may push President Barack Obama’s final decision on the contested project until after the midterm congressional elections.

    Judge Stephanie Stacy in Lincoln yesterday invalidated legislation that let Republican Governor Dave Heineman approve the route and bypass the state Public Service Commission. TransCanada Corp. (TRP) will need commission approval, a process that by state law can take seven months. Nebraska Attorney General Jon Bruning has appealed the ruling, Heineman said yesterday.

    The judge’s decision gives Obama a reason to delay a politically sensitive decision that could roil Democratic plans to keep control of the Senate.

    The cavalry rides over the hill, again.

  • SForza||

    Never trust a woman with two first names.

  • Byte Me||

    ...it also raises significant questions about whether an executive branch agency violated the separation of powers.

    Of course they did. What else is new?

    More importantly, I finally remembered my password, so now I can comment during my lunch break.

  • The Late P Brooks||

    Their pens may have said "no", but the "yes" was upon their lips still?

    My penis never said no, no matter what my lips might have said.

    Oh, wait-

    Never mind.

  • Brett L||

    Was talking to a guy I know a little Tuesday night at the bar. He's doing some legal specialization thing in environmental law, and is fairly libertarian. I asked him how he could possibly keep up when the Federal Register changes weekly, and he said you really don't. You get your one little space and try to stay up on that. Imagine. If lawyers have to be that specialized, what hope is there for anyone else to comply by simple good faith efforts?

  • sarcasmic||

    what hope is there for anyone else to comply by simple good faith efforts?

    It's impossible, by design. This way everyone is a criminal.

    So if you're in an enforcement capacity, and someone pisses you off, knowing that it is impossible to comply with all the rules you investigate them and then fine the shit out of them and/or send them to court.

  • Homple||

    “Did you really think that we want those laws to be observed? We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against . . . The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.”, ’Floyd Ferris’, bureaucrat – Atlas Shrugged

    “The conventional word that it employed to describe tyranny is ‘systematic’. The true essence of a dictatorship is in fact not its regularity but the unpredictability and caprice; those who live under it must never be able to relax, must never be quite sure they have followed the rules correctly or not. Thus, the ruled can always be found to be in the wrong.”,
    Christopher Hitchens

  • Francisco d Anconia||

    It's impossible, by design. This way everyone is a criminal.


    But do you really think it's by design? Do you think there is a mastermind out there saying, "I'll make everything illegal to increase my power *insert diabolical laughter?"

    I view it like this. Liberty is like an F-16. It is statically unstable and if left unattended will diverge from neutral at an ever increasing rate. For an F-16 to remain controllable, it requires computers to catch and fix small divergences before they get too large to correct. The American people are the computers that failed to apply corrections (back in 1933) and now they system is out of control.

    Perhaps unrecoverable.

    It is the natural order for liberty to shrink, call it "freedom entropy", and energy is required to maintain it.

  • sarcasmic||

    But do you really think it's by design?

    Yes.

    Do you think there is a mastermind out there saying, "I'll make everything illegal to increase my power *insert diabolical laughter?"

    Not necessarily by the conscious design of one central planner, but definitely by design. The purpose of power is to keep and expand power. A way to expand power is to create rules. Creating rules that are impossible to follow greatly increases power because it gives enforcers the power to choose who they will target for enforcement.

    For example using the IRS to target political opponents.

  • Brett L||

    But can Liberty fly itself home with only 1/2 of its lift-generating surfaces intact?

  • The Late P Brooks||

    what hope is there for anyone else to comply by simple good faith efforts?

    None.

    But you knew that, already.

  • Invisible Finger||

    it also raises significant questions about whether an executive branch agency violated the separation of powers.

    In a fair country, all members of the agency found violating the separation of powers should be given the death penalty.

  • VH||

    "In its 2007 decision in Massachusetts v. Environmental Protection Agency, the U.S. Supreme Court handed federal regulators a landmark victory by holding that the “sweeping definition of ‘air pollutant’” in the Clean Air Act allowed the EPA to regulate the emission of greenhouse gases. On Monday, the Supreme Court will return to this contentious area when the justices consider a new case testing the bounds of the EPA’s regulatory reach."

    Damon,

    Mass v. EPA did not exactly hand the EPA a victory and allow it to regulate CO2. The Bush administration did not regulate greenhouse gases to combat climate change, so they got sued. The court said that EPA must regulate greenhouse gases because they are pollutants under the Clean Air Act.

    The standing issue was paticularly interesting. Massachussetts argued that the state and its citizens were injured by EPA's refusal to regulate greenhouse gases because the gases cause climate change, climate change causes sea levels to rise, and rising sea levels inundate real property in Massachussetts. It's pretty comical if you can forget the real-world ramifications.

    V

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