The Obama administration’s climate change agenda on Monday faced one of its first real tests in front of the U.S. Supreme Court, where Texas and a group of industry leaders challenged an Environmental Protection Agency regulation aimed at limiting greenhouse gas emissions.
The question before the court is whether permits needed by large polluting facilities like power plants, factories and refineries should also restrict emissions of greenhouse gases. Texas and several industry coalitions say the permits, which companies must obtain before building facilities, should not be required for such emissions.
Instead, argued Texas Solicitor General Jonathan Mitchell and Washington, D.C.-based attorney Peter Keisler, permits should only limit emissions of regular air pollutants like sulfur dioxide and nitrogen oxide.
“Greenhouse gas emissions should not be treated the same as other air pollutants,” Mitchell told the court, pointing out that Congress has only passed legislation on traditional air pollutants, not greenhouse gases. “Congress does not establish round holes for square pegs.”
The scope of the question at hand is narrow because it only deals with permitting. In court cases in 2007 and 2011, the Supreme Court upheld the EPA’s ability to broadly regulate greenhouse gas emissions from “mobile sources,” like motor vehicles, and “stationary sources,” like power plants.
Still, if Supreme Court justices agree with Texas and the industry petitioners, the Obama administration’s attempts to combat climate change independently of Congress will suffer a major setback.
“Permitting is one of the most powerful tools in the toolbox,” said Pamela Giblin, an Austin-based lawyer with the firm Baker Botts LLP, which represents many energy and chemical companies that are affected by the regulations. “You’ve got these multibillion-dollar projects; you’ve got bulldozers there waiting until you get the permit. … The agency is never going to have as much leverage over a company as it does when they’re madly trying to get the permission to break ground.”
The EPA made the move to regulate heat-trapping emissions from industrial sources after a 2007 Supreme Court decision that said the agency had the authority to limit greenhouse gases from cars and trucks under the federal law.
As a result, President Barack Obama has tried to bypass Congress by moving his ambitious agenda for addressing climate change through the EPA, angering many Republicans.
In briefs filed with the court, Texas Solicitor General Jonathan Mitchell argued that the Clear Air Act cannot be interpreted to allow EPA’s permitting requirements when the rules cause “preposterous consequences.” By the state’s estimation, more than 6 million industrial sources nationwide would be forced to meet the requirements at a cost of $1.5 billion.
Legal experts said Texas might not be able to sway the justices because previous court decisions give deference to federal agencies when statutes are ambiguous.
“The Supreme Court has said we defer to the agency if its position is reasonable,” said Thomas McGarity, professor of administrative law at the University of Texas at Austin.
David Doniger, the climate policy director for the Natural Resources Defense Council, said fewer than 200 industrial facilities needed permits in the first two years of the new requirements for greenhouse gases. “So despite all the cries of alarm, the Clean Air Act’s permitting requirements are working just fine,” he said.
Tracy Hester, professor of environmental law at the University of Houston, described the state’s request as a “classic Hail Mary.”
“Given the court had this whole buffet of issues and still narrowed it to one” when it decided to hear the Texas case, “that makes going for the whole 99 yards unlikely,” Hester said.
Lyle Denniston thinks things went reasonably well for the Obama administration.
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.
The most enthusiastic supporter of the industry challengers was Justice Antonin Scalia, although Justice Samuel A. Alito, Jr., asked strongly skeptical questions about EPA’s justification for its actions. Chief Justice John G. Roberts, Jr., revealed little of where he might wind up, acting mostly as a moderator of his more active colleagues, and Justice Clarence Thomas said nothing.
That, of course, left Justice Kennedy. He was quite protective of the Court’s own decision seven years ago, launching EPA into the field of greenhouse gas regulation, and of a reinforcing decision on that point by the Court three years ago. But neither was close enough to the specifics of what EPA has now done, so he seemed short of just one precedent that might be enough to tip his vote for sure.
“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.
We’ll know in a few months. Daily Kos has more.