February 26, 2014
On Monday, the Supreme Court heard oral arguments in Utility Air Regulatory Group v. Environmental Protection Agency, a consolidation of six cases all addressing a similar issue:
Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.
I covered the basic background of the case in greater detail in this post, so I’ll skip right into the details of the oral argument.
From what the justices said during the arguments, it seems like this case could be a repeat of 2007’s Massachusetts v. EPA, in that the Court now seems like to rule five to four along ideological lines that the EPA had the authority to regulate greenhouse gases under the Clean Air Act, just as it did in 2007.
Unsurprisingly, Justice Scalia was the most hostile towards the EPA and its purported authority to regulate GHGs for stationary sources. He was the most aggressive in questioning Solicitor General Donald Verrilli, who was arguing on behalf of the government, and the justice who, along with Justice Alito, were the most explicit about their view that the EPA had “rewritten” a statute in raising the statutory emissions thresholds (to reduce the number of regulated parties to a more manageable figure).
Of course, the EPA doesn’t agree with this “rewritten statute” assessment, instead insisting that the EPA will eventually get back to those higher numbers once it has better prepared for it, and that the lower numbers are only transitional.
All of the liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) seemed to be largely onboard with this interpretation as well.
Justice Kagan in particular seemed to help out the Solicitor General quite a bit, even going so far as to make the EPA’s argument when questioning the private industry’s attorney:
Well, [the EPA] hasn’t rewritten [the provisions of the Clean Air Act]. All it has said, as I understand it…is that we can’t implement it immediately, because it would overburden us administratively. It hasn’t said that over time, with streamlining and with other adjustments, that it can’t do this. It’s just said we can’t do it right away.
So it looks like the EPA has at least four votes. Where could the fifth come from?
Justice Thomas was, once again, silent during oral arguments, but if history is any kind of indicator, he’ll likely be siding with Justice Scalia. As mentioned earlier, Justice Alito seemed particular hostile to the EPA’s position, so he’ll also likely be voting against the agency.
That leaves us with Justice Kennedy and Chief Justice Roberts.
The Chief Justice gave hints that he may be concerned that the EPA had gone too far in its discretion, but if this is truly the case, he wasn’t nearly as aggressive in asserting this view as Justices Scalia and Alito. Still, if I had to put Chief Justice Roberts into one single camp, it would be against the EPA.
That, once more, leaves a four-four split with Justice Kennedy to break the tie.
If our quintessential swing-voter justice gave anything away about his position at oral arguments, it is that he wanted to ensure that 2007’s Massachusetts decision remained fully intact and that the EPA could continue to regulate greenhouse gases.
Does this mean that Kennedy will side with the liberals for the EPA? Not necessarily. After all, he did express concern that there wasn’t much (that is, any) precedent condoning the EPA’s actions. But that concern doesn’t necessarily seem fatal to a potential Kennedy vote for the EPA.
We’ll find out for sure when the Court announces its decision, but it seems like this is another five to four decision for EPA regulation, just like in 2007.