Supreme Court to hear cases on EPA power over emis­sions

The Washington Times Weekly - - Politics - BY BEN WOLF­GANG

The Supreme Court set the stage for a high-stakes show­down over Pres­i­dent Obama’s cli­mate change agenda, agree­ing Tues­day to hear a se­ries of cases in­volv­ing the power of the En­vi­ron­men­tal Pro­tec­tion Agency to man­date green­house gas emis­sion con­trols at util­i­ties, fac­to­ries and other fa­cil­i­ties around the coun­try.

Both sides were claim­ing a pre­lim­i­nary vic­tory in the high court’s de­ci­sion, with en­vi­ron­men­tal­ists con­tend­ing the jus­tices de­clined to take up a much broader chal­lenge to the EPA’s au­thor­ity to iden­tify harm­ful green­house gases, while busi­ness and en­ergy in­dus­try groups said the planned Jan­uary oral ar­gu­ment gives the agency’s crit­ics a first chance to chip away at what they see as an out-of-con­trol EPA agenda full of man­dates and reg­u­la­tions that threaten jobs and eco­nomic growth.

Le­gal an­a­lysts said the jus­tices’ de­ci­sion on EPA au­thor­ity un­der the Clean Air Act to con­trol emis­sions from fac­to­ries and other “sta­tion­ary” fa­cil­i­ties likely will have lim­ited im­pact on the ad­min­is­tra­tion’s broader global-warm­ing ef­fort.

Highly con­tro­ver­sial as­pects of that plan — most no­tably, carbon emis­sion re­stric­tions on new power plants that could crip­ple the U.S. coal in­dus­try — ap­pear des­tined to move for­ward, no mat­ter what the high court de­cides af­ter it hears the case next year.

Not un­der re­view in the cases ac­cepted Tues­day will be the EPA’s con­clu­sion that carbon emis­sions en­dan­ger pub­lic health and the planet. The court also de­clined to hear cases that would over­turn the court’s 2007 de­ci­sion or­der­ing the EPA to con­sider reg­u­lat­ing green­house-gas emis­sions.

Still, the cases are shap­ing up as the big­gest le­gal test of Mr. Obama’s green agenda dur­ing this Supreme Court term.

“Th­ese reg­u­la­tions will be felt not only by the na­tion’s en­ergy providers and man­u­fac­tur­ers, but they also threaten to im­pose new strin­gent per­mit­ting re­quire­ments for mil­lions of sta­tion­ary sources, which will im­pact ev­ery as­pect our econ­omy,” said Jay Tim­mons, pres­i­dent and CEO of the Na­tional As­so­ci­a­tion of Man­u­fac­tur­ers. The as­so­ci­a­tion was one mem­ber of a broad coali­tion that brought a va­ri­ety of pe­ti­tions be­fore the Supreme Court re­lated to new EPA reg­u­la­tions.

The court re­jected three of those, and in the process closed the door to a wider re­view of the EPA’s over­all au­thor­ity un­der the Clean Air Act to reg­u­late green­house gas emis­sions.

In­stead, the jus­tices agreed to hear six cases that fo­cus on one cen­tral ques­tion: “Whether the EPA per­mis­si­bly de­ter­mined that its reg­u­la­tion of green­house gas emis­sions from new mo­tor ve­hi­cles trig­gered per­mit­ting re­quire­ments un­der the Clean Act for sta­tion­ary sources that emit green­house gases.”

That ques­tion arose fol­low­ing the EPA’s land­mark au­to­mo­bile fuel ef­fi­ciency stan­dards, first put for­ward in 2010 and up­dated last year.

Those rules, of­ten touted by Mr. Obama and the en­vi­ron­men­tal com­mu­nity as one of the most im­por­tant ac­tions the ad­min­is­tra­tion has taken to fight global warm­ing, call for ve­hi­cles to av­er­age 34.5 miles per gal­lon by 2016 and 54.5 miles per gal­lon by 2025.

But af­ter re­leas­ing those stan­dards, the EPA cited pro­vi­sions of the Clean Air Act and de­ter­mined that if it was lim­it­ing emis­sions from cars and trucks, it also must es­tab­lish new per­mit re­quire­ments for “sta­tion­ary fa­cil­i­ties,” which in­clude power plants, fac­to­ries and other sites.

The ques­tion be­fore the court will be whether the EPA in­stead could and should treat those two cat­e­gories dif­fer­ently, and whether the agency over­stepped when it used the 2010 au­to­mo­bile rule to also crack down on other sources.

A fed­eral ap­peals court has unan­i­mously up­held the EPA’s de­ci­sion to limit sta­tion­ary fa­cil­i­ties, and the Supreme Court pre­vi­ously has ruled in fa­vor of the agency’s abil­ity to reg­u­late green­house gas emis­sions.

With the case fo­cused on just one nar­row ques­tion, spe­cial­ists say the ad­min­is­tra­tion’s larger cli­mate-change agenda is not in jeop­ardy.

“The core com­po­nents of the pres­i­dent’s cli­mate ac­tion plan should there­fore re­main in­tact, re­gard­less of how the Supreme Court re­solves this case,” said Jonas Monast, di­rec­tor of the cli­mate and en­ergy pro­gram at Duke Univer­sity.

Lead­ers in the en­vi­ron­men­tal com­mu­nity cel­e­brated the fact that the high court re­fused to hear chal­lenges to EPA’s broader power to limit green­house gas emis­sions.

“The court re­jected pleas by big pol­luters and a small group of states to re­view the EPA’s au­thor­ity to limit green­house gas emis­sions from ve­hi­cles and other sources when they en­dan­ger pub­lic health and wel­fare,” said David Doniger, di­rec­tor of pol­icy at the Nat­u­ral Re­sources De­fense Coun­cil, a lead­ing en­vi­ron­men­tal group and fre­quent de­fender of EPA ac­tions.

Repub­li­can-led states, such as Vir­ginia, Alaska, Texas and oth­ers, pushed the court to take a look at the EPA’s ac­tions and au­thor­ity. The U.S. Cham­ber of Com­merce, Amer­i­can Petroleum In­sti­tute, Amer­i­can Chem­istry Coun­cil, Na­tional As­so­ci­a­tion of Home Builders and other or­ga­ni­za­tions also sup­ported a Supreme Court re­view.

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