February 7, 2014
On February 24, 2014, the Supreme Court will hear oral arguments in Utility Air Regulatory Group v. Environmental Protection Agency, which consolidates five other similar cases. At issue in all of these cases is the EPA’s authority to regulate greenhouse gas emissions.
When the Supreme Court agreed to hear the case, however, it substantially narrowed the issue that was before it. Specifically, the Court presented the following question to the parties upon granting certiorari:
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.
There’s some heavy regulation-specific language in that question, so let’s break down the issue.
In 2007, the Supreme Court ruled in Massachusetts v. EPA that the EPA has authority to regulate greenhouse gases (GHG) under the Clean Air Act (CAA). The suit was brought by a group of states who wanted the EPA to regulate GHGs to stem the effects of global climate change. These effects, if left unchecked, stand to cause loss of territory by coastal states such as Massachusetts due to rising sea levels.
The Court also ruled that if the EPA wanted to continue to do nothing on the issue of carbon regulation, it is required by the CAA to base such a decision on a consideration of “whether greenhouse gas emissions contribute to climate change.”
In December 2009, the EPA, under a different political administration, directly addressed that issue: the agency issued two findings concerning the CAA and greenhouse gases. The first of these is known as the “endangerment finding,” and it concluded that current and projected levels of six specific GHGs threatened the health and welfare of current and future generations. The second finding, “the cause or contribute finding,” concluded that the aggregate GHG emissions from new and existing motor vehicles contribute to the atmospheric concentrations of the stated GHGs and increase the threat of climate change.
Together, the two findings were used toward establishing GHG standards for new vehicles starting in 2012. The EPA later determined that its authority to regulate GHG emissions from mobile sources (found under Title II of the CAA) triggered its authority to regulate such emissions from stationary sources – including new and existing power plants.
The original set of challenges faced by the EPA were against the decisions that collectively allowed the EPA to regulate GHG emissions as a whole, and in respect to both mobile and stationary sources separately.
Much to the dismay of the regulations’ challengers, the Supreme Court limited the scope of its review of the issue to whether it was proper for the EPA to regulate stationary sources in the manner that it did based on the fact that the agency had previously determined that it had the authority to regulate emissions from mobile sources.
There are (at least) two things worth noting here: first, the Supreme Court’s refusal to review the issue of whether the EPA could regulate GHG emissions in general or in regards to mobile sources leaves the lower court’s decision – that the EPA does indeed have such authority – intact. Second, although I can’t explain the full details of it with any measure of brevity, the mechanism used by the EPA to invoke authority to regulate stationary sources was not the only manner in which the EPA could go about regulating GHG emissions from such sources. Meaning, even if the Supreme Court finds against the EPA, there are other options for the EPA to explore to reach the same regulatory end.
What are the stakes in this case, then? Although unlikely, it’s still possible that the Supreme Court could decide to broaden the issue, which, if the Court ruled against the agency, would pose a serious risk to the EPA’s ability to regulate GHG emissions.
More realistically, what hinges on this case is the public view of the EPA’s actions. If the Court rules against it, the agency could see more challenges to its GHG emission regulations, and it could create political roadblocks for further regulatory action.
We’ll revisit this case again after oral arguments, but at the outset, it’s important to know which issues and interests are present.