President Obama’s plan to fight global warming was on trial Monday. The U.S. Supreme Court heard oral arguments over whether the administration had the authority to require that industrial facilities get permits when they emit large amounts of greenhouse gases.

Thirteen states, industrial groups and utility companies have petitioned the Supreme Court to rule that the Environmental Protection Agency does not have the authority to regulate greenhouse gas emissions from these facilities. Such a ruling would imperil Obama’s plan to fight global warming, the lynchpin of which is to cut U.S. greenhouse gas emissions.

“This case marks an extremely critical point in clarifying just how far the Obama Administration can extend their regulatory overreach, including by rewriting the Clean Air Act to suit its needs,” said Louisiana Republican Sen. David Vitter in a statement.

“This Administration has led a far-left agenda driven crusade to circumvent Congress at every opportunity, and this case could permit an unprecedented power grab by expanding how far it can go to regulate greenhouse gases,” Vitter said. “Legislative attempts like ‘cap and trade’ have failed because the American public knows these regulations could strangle our economy, and the implications of this case could cripple the democratic process.”

The EPA, environmentalists and public health groups argue that the agency’s requirement of permitting for facilities that emit large amounts of greenhouse gases is within the authority granted to it by the Clean Air Act.

“We need all available safeguards under the Clean Air Act to address the urgent challenge of climate change — including the advanced pollution control measures required as an essential protection in construction permits for large industrial sources,” said Vickie Patton, an attorney with the Environmental Defense Fund. “These measures are vital if we hope to minimize industrial climate pollution.”

Patton and others have also tried to downplay the importance of the case by arguing that while the case does have major policy implications, it is not challenging the EPA’s underlying authority to regulate greenhouse gases.

“What is not at stake in this case is the EPA’s determination that six greenhouse gases — carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride — endanger the health and welfare of current and future generations,” Patton added.

The background

At the center of the case Utility Air Regulatory Group v. EPA is the question of whether the EPA’s authority to regulate greenhouse gases from motor vehicles allows them to regulate greenhouse gases from stationary sources.

The case follows the 2007 Supreme Court decision, Massachusetts v. EPA, in which the court ruled that the EPA could regulate greenhouse gas emissions if it was determined that they were harmful to human health and that the agency needed to begin the process of making such a determination. In that case environmentalists, twelve states and several cities sued the EPA to compel them to begin the so-called “endangerment finding.”

It wasn’t until President Obama was in the White House that the EPA finally came out with its endangerment finding, saying that greenhouse gases from motor vehicles were harmful to human health and, therefore, could be regulated under the Clean Air Act.

The EPA moved quickly to begin regulating greenhouse gas emissions, first limiting emissions from motor vehicles with its “tailpipe rule.” This rule limited emissions from light-duty trucks and set new fuel efficiency rules for cars and trucks. Soon after, the EPA argued that because the Clean Air Act applies to “any air pollution agent,” they had the authority to regulate greenhouse gas emissions from stationary sources.



The problem was that the Clean Air Act Title V permits that the EPA is now applying to greenhouse gases, were created before global warming was viewed as a serious policy issue. Under the Clean Air Act, Prevention of Significant Deterioration (PSD) preconstruction permits are required for stationary sources that emit at least 100 or 250 tons per year of traditional pollutants — not greenhouse gases, like carbon dioxide. Stationary facilities that could potentially emit at least 100 tons of pollutants per year need a Clean Air Act Title V permit.

Sounds simple enough, but since greenhouse gases, especially carbon dioxide, are much more common than traditional pollutants and are emitted in much larger amounts. Applying Clean Air Act permitting rules in this way meant that the agency would more than six million facilities across the country, including including schools, hospitals and even some large households.

So the agency tweaked its rule so that only large facilities, like refineries and power plants, which emit more than 75,000 or 100,000 tons per year would need permits for greenhouse gas emissions.

What’s really at stake?

While this Supreme Court case won’t completely prevent the EPA from regulating greenhouse gases, it will define what the agency can and can’t do in terms of fighting global warming.

“With the president announcing in his State of the Union address that he plans to expand the use of executive authority, the question of just how far the courts will let administrative agencies go in substituting what the executive wants over what Congress legislated will increasingly come to the fore,” writes attorney Pete Glaser, who helped the the Washington Legal Foundation file two amicus briefs in support of Utility Air Regulatory Group. “If the EPA can ignore numerical statutory permitting thresholds, what else can federal agencies do?”

“While the rule at issue is just one example of the president’s broader executive overreach, the Supreme Court must act to curb abuse of power by the president and his EPA before it escalates any further,” said Laura Sheehan, spokeswoman for the American Coalition for Clean Coal Electricity.

“Millions of American jobs and the livelihoods of communities and families across the country will be jeopardized if President Obama is granted authority to proceed with his Climate Action Plan, the most radical components of which haven’t yet even been enacted,” Sheehan added.

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