EPA Gets Supreme Court Thumbs-Up on Greenhouse Gas Regulation—and a Spanking

In a decision that reads as a major victory for the Environmental Protection Agency (EPA) and its supporters, the Supreme Court today largely signed off on the agency's push to regulate so-called "greenhouse gases," such as carbon dioxide. The one catch, a divided Supreme Court ruled in Utility Air Regulatory Group v. Environmental Protection Agency, is that to regulate for greenhouse gases, the EPA must already have jurisdiction over a facility as an emitter of other regulated pollutants—carbon dioxide can't be the only excuse.

The court also slapped the EPA for regulatory overreach.

Writing for the court, Justice Antonin Scalia calls out the EPA for claiming "newfound authority to regulate millions of small sources—including retail stores, offices, apartment buildings, shopping centers, schools, and churches—and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate."

That broad mandate would have been gained by the success of an assertion of authority to regulate based on emission of greenhouse gases alone.

The final court decision limits EPA authority to facilities that already come under the agency's jurisdiction because they emit at least 100 tons per year of pollutants regulated under the Clean Air Act. But, as Scalia notes, that still gives federal environmental regulators power over 83 percent of of American stationary-source greenhouse gas emissions. Only 3 percent of greenhouse gases come from the smaller sources over which the EPA claimed, but did not receive, jurisdiction.

As a result, as noted by Reason's Ron Bailey, the ruling will have litte impact on the Obama administration's plans to force 30 percent reductions in carbon emissions from electric power generating plants.

The case decided today was a follow-on to 2007's Massachusetts v. Environmental Protection Agency, which opened the door to greenhouse gas regulation by the EPA. A coalition of power utilities brought today's case, and suffered a major setback with the decision.

Still, the court's scolding that "it would be patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to grant" may be taken as a warning to federal regulators that they don't have carte blanche to assert jurisdiction. Also, it potentially provides a shield for smaller businesses and organizations that don't produce large quantities of greenhouse gases, but could still have come under regulatory authority had the EPA won everything it wanted.