By: Barbara Lichman, Ph.D.

On Monday, February 24, the United States Supreme Court watched the Environmental Protection Agency (“EPA”), industry groups and sympathetic states take the ring over what the challengers call a “brazen power grab” by the Obama Administration and its environmental regulators, aimed at limited carbon emissions from new stationary sources such as power plants and factories.

This is not the first time the same parties have squared off over greenhouse gas (“GHG”) regulation.  In 2008, the Obama Administration initiated rules governing mobile sources, requiring new motor vehicles to demonstrate better fuel efficiency and, thus, reduce carbon emissions.  The High Court effectively upheld those rules by refusing to hear the challenges against them.  The Administration this week announced plans to expand mobile source regulation by enacting new limits on carbon emissions for trucks and buses.  EPA has hit a brick wall, however, with its expansion of regulation to stationary sources, concerning which the High Court will now be hearing oral argument on six different appeals.  The upcoming legal battle, like so many others over environmental regulation, is fraught with political overtones, as well as a variety of legal issues. 

In one corner of the ring is a political juggernaut made up of Texas, Florida and 15 other conservative states, together with business and energy groups who are accusing the Administration of having overstepped its legal and constitutional authority by refusing to wait for Congressional action, and instead expanding the regulatory scope of the Federal Clean Air Act, 42 U.S.C. § 7401, et seq., (“CAA”) administratively.  In the words of the United States Chamber of Commerce, the Administration has enacted “the costliest, farthest reaching, and most intrusive regulatory apparatus in the history of the American administrative state.”  Specifically, the challengers argue that the scope of the regulations, while nominally limited to sources such as power plants and factories, would, in fact, include millions of other sources such as hospitals, shopping malls and universities, and would cause the cost of energy to rise dramatically.

In the other corner are the EPA and environmental groups.  EPA argues that the Administration’s regulatory initiative was already sanctioned by the High Court as long ago as 2007, when the Court agreed with EPA that carbon monoxide, methane and nitrous oxide are pollutants subject to EPA regulation under the CAA.  The Court split in that decision, however, with the four conservative Justices taking the position that the Clean Air Act only covers air pollutants that affect breathing, not those that trap solar energy and contribute to climate change.  Observers expect a similar split this time, with Justice Anthony Kennedy, who voted with the majority in 2007, once again providing the deciding vote.

Environmentalists argue the narrow scope of the regulation which they claim is limited to new, major emitters of GHGs, such as power plants, not any facility that emits GHGs, and that the targeted facilities are required to use “best available technology” to obtain a permit, a requirement that would exclude all less intrusive uses.  Until the High Court acts, however, the final bell will not be rung on the legal and political contests over the proper scope of GHG regulation under the CAA.

From Aviation and Airport Development Law News Blog