The case doesn't affect the agency’s overall ability to regulate greenhouse gases. SCOTUS nibbles at EPA's powers

EPA emerged from the Supreme Court’s latest greenhouse gas decision Monday with its authority over carbon pollution almost entirely intact, despite a judicial tongue-lashing about overstretching its powers.

The justices rejected part of an early Obama administration attempt to limit greenhouses gases from power plants and other industrial sources, accusing EPA of seeking an “enormous and transformative expansion” of its authority without approval from Congress. But the outcome will have little practical effect on the specific permitting programs in question — and probably has no bearing on the major greenhouse gas rule for existing power plants that the agency proposed earlier this month.


“It bears mention that EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said from the bench while reading the decision, which drew a mixture of 5-4 and 7-2 votes amid in a flurry of concurring and dissenting opinions.

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EPA had sought to use two permitting programs for industrial facilities — known as “PSD” and “Title V” — to regulate 86 percent of the U.S. carbon emissions that come from stationary sources. The court’s ruling would pare that to 83 percent, the administration said.

Still, the case has drawn a lot of interest given that it focused on EPA’s interpretation of the Clean Air Act, an issue that will be crucial when the administration’s major climate regulations eventually go to court.

During oral arguments in February, Chief Justice John Roberts had made it clear that the court had no intention of reopening the big-picture question of whether EPA can regulate greenhouse gases as pollutants. The court has twice ruled that EPA has that power — and the agency and its supporters were largely treating Monday’s ruling as a third victory.

“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 agency said in a statement.

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The Sierra Club was just as pleased. “The Supreme Court’s ruling means that the largest new industrial facilities will need to limit their greenhouse gas emissions,” said Joanne Spalding, the group’s senior managing attorney.

Meanwhile, EPA’s critics seized on the part of the decision that accused the agency of vast regulatory overreach. Texas Attorney General Greg Abbott, for example, hailed the ruling as “a great victory for the rule of law and for the Constitution.”

“The president has said over and over again that where Congress does not act, he will act unilaterally,” Abbott said in a statement. “The EPA’s greenhouse gas permitting scheme is a perfect example of that dangerous philosophy in action.”

“Today is a victory for the integrity of our regulatory process and rational limits on executive power,” said a statement from National Association of Manufacturers general counsel Linda Kelly. She added that “as the EPA considers its next suite of [greenhouse gas] regulations for new and existing power plants, manufacturers encourage the agency to heed the warning of the Supreme Court that it may not ‘bring about an enormous and transformative expansion in the EPA’s regulatory authority without clear congressional authorization.’”

EPA had argued that if applied strictly, its greenhouse gas restrictions under the PSD and Title V programs would apply to a huge array of typically unregulated pollution sources, including schools, churches, apartment buildings and shopping centers. But the agency also acknowledged that such an all-expansive permitting effort would be absurdly onerous, so it proposed a “tailoring rule” that would exempt all but the largest pollution sources.

Scalia rejected both parts of the agency’s argument — both its assertion of sweeping authority and its attempt to limit the impact of the rules.

The result is pretty much a wash and means only the biggest pollution sources will feel the burden.

Scalia wrote that the case offers “a singular situation: an agency laying claim to extravagant statutory power over the national economy while at the same time strenuously asserting that the authority claimed would render the statute ‘unrecognizable to the Congress that designed’ it.” He added, “We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery.”

Without the tailoring rule, EPA estimated that the costs of administering the PSD program would jump to more than $1.5 billion a year from $12 million, while “decade-long delays in issuing permits would become common, causing construction projects to grind to a halt nationwide,” the opinion notes. EPA sought to limit the burden by imposing the greenhouse gas limits only on facilities that produce 100,000 tons or more each year, up from the 100- to 250-ton threshold contained in the Clean Air Act.

Instead, under the court’s ruling, EPA cannot require anyone to get a PSD or Title V permit solely because of greenhouse gas emissions. But it can impose carbon limits on facilities that already fall under those permitting programs because of other kinds of air pollution, such as smog-creating nitrogen oxides or acid-rain-causing sulfur dioxide.

The result is that the biggest polluters will have to use the best available technology to control greenhouse gases, largely by making new facilities and upgrades as energy efficient as possible.

Monday’s case — Utility Air Regulatory Group v. EPA — questioned whether the agency’s earlier decisions to consider greenhouse gases as pollutants and to regulate vehicles’ carbon emissions automatically triggered requirements to include carbon in the two other air programs. They didn’t, the court ruled.

The proposed climate rule for power plants that EPA announced this month would require much deeper carbon cuts than the rule involved in Monday’s case would envision. The proposal goes beyond requiring reductions at individual plants and instead would force states to achieve broad-based reductions, perhaps by joining cap-and-trade networks or increasing their reliance on natural gas instead of coal.

Josh Gerstein and Darius Dixon contributed to this report.