Six reasons why the Greenhouse Gas cases are worth watching

In the commentary, Tom Donnelly from the Constitutional Accountability Center looks two environmental cases in front of the Supreme Court this term that could have big implications for the Clean Air Act.

Supreme_Court_of_the_United_StatesClean air.  Presidential power.  Congressional dysfunction. All this and more are at issue in two Supreme Court cases that, in the words of environmental law superstar Richard Lazarus, stand poised to “produce the most significant term ever for the Clean Air Act.”  The first, argued in December, is EPA v. EME Homer.  It involves the EPA’s effort to prevent upwind emitters from polluting downwind states.  The second, set to be argued in a little over a week, is Utility Air Regulatory Group v. EPA, aka the “Greenhouse Gas Cases”—the topic of this post.

Let’s begin with the basics.  Seven years ago, in Massachusetts v. EPA, the Supreme Court ruled that the EPA had the authority under the Clean Air Act (CAA) to regulate greenhouse gas emissions from new motor vehicles.  Practically speaking, this decision has served as the foundation for all of the work that the Obama Administration is now doing to address climate change.  Following Mass v. EPA, the EPA analyzed the threat posed by motor vehicle emissions, concluded that the threat was real, and issued regulations covering such emissions.  Under the EPA’s longstanding interpretation of the CAA, these new greenhouse gas regulations, in turn, required the EPA to apply an important permitting program—the Prevention of Significant Deterioration (or PSD) program—to certain stationary sources of greenhouse gas emissions (like power plants).  Finally, in the face of resource constraints and implementation challenges, the EPA decided to phase in these new requirements over time, beginning with the largest emitters.

Industry groups challenged the EPA’s actions, and the D.C. Circuit upheld those actions in full.  Industry groups then appealed to the Supreme Court, and while the Court turned away certain petitions challenging the core of Mass v. EPA, it did agree to hear a challenge to the EPA’s decision to apply its PSD permitting program to greenhouse gas emissions.  That’s what the Greenhouse Gas Cases are about, substantively.

PSD, EPA, CAA—this is more than Alphabet Soup à la Washington. Here are six reasons to keep an eye on the Greenhouse Gas Cases:

1)      Climate Change Is a Big Deal:  Climate change is unquestionably one of the most significant policy challenges facing the country, and the Obama Administration is already using its authority under the CAA to address it.  The PSD program—at issue in the Greenhouse Gas Cases—is one of the arrows in the EPA’s regulatory quiver.  While the EPA certainly has others, the PSD program is an important, flexible way of ensuring that major emitters employ the best, most cost-effective technology for reducing greenhouse gas emissions.  Needless to say, the costs of inaction are potentially enormous, as explained in detail by the American Thoracic Society (ATS) in its amicus brief, in which it describes climate change as a “threat . . . to the health of hundreds of millions of American citizens” and reminds the Court that its “effects . . . can be deadly.”

2)      All Eyes on Justice Kennedy (Yet Again):  Massachusetts v. EPA—again, the case that has served as the foundation for the Obama Administration’s climate change policy—was a 5-to-4 decision with Justice Kennedy casting the decisive vote.  It also offered two starkly different visions of the CAA.  Justice Kennedy and the Court’s progressives read the Act broadly, providing the EPA with “sweeping” authority to regulate greenhouse gas emissions.  At the same time, Justice Scalia and his conservative colleagues read it quite narrowly, deferring to the Bush Administration and limiting the EPA’s regulatory authority to pollutants with “localized” effects on the ambient air (in other words, not greenhouse gases).  Certain Petitioners have now latched onto Justice Scalia’s vision in the Greenhouse Gas Cases, arguing that the PSD program should be limited to “conventional” or “localized” pollutants.  The key question is whether the Roberts Court—and, especially, Justice Kennedy—will allow these Petitioners to get away with effectively repackaging the same types of arguments that the majority rejected in Mass v. EPA.

3)      The Battle Over Presidential Power Rages On:  Both before and after this year’s State of Union Address, conservatives stepped up their attacks on President Obama as a “lawless” tyrant, supposedly using his “pen and phone” to rewrite statutes and, in turn, erase Congress from the Constitution.  The Greenhouse Gas Cases are about that, too—or, at least, that’s what the industry challengers and several of their amici think they’re about, evident in their overheated rhetoric and warnings of constitutional catastrophe.  Nevermind that the Framers crafted the Constitution to ensure that we’d have an “energetic” President and a federal government able to address problems that states alone cannot solve.  Or that Congress provided the President with sweeping authority to address air pollution through the broadly worded CAA, as the Court recognized in Mass v. EPA.  Or that the President acted reasonably here, following a three-decade-old interpretation of the statute, phasing in new greenhouse gas requirements over time, and addressing the largest emitters first.  This is one of several big cases this Term that sets up a potential showdown between the Obama Administration and the Roberts Court.  Others include Sebelius v. Hobby Lobby (on the Affordable Care Act’s contraception mandate), NLRB v. Noel Canning (on the President’s recess appointments power), McCutcheon v. FEC (on campaign finance), and EPA v. EME Homer (on the Cross-State Air Pollution Rule).

4)      The Chamber’s Starring Role:  While the U.S. Chamber of Commerce often files amicus briefs in important Supreme Court cases (including in EME Homer earlier this Term), the Chamber is actually one of the parties before the Court in the Greenhouse Gas Cases.  Indeed, in its petition for review, the Chamber asked the Court to scrutinize the EPA’s core finding that greenhouse gas emissions endanger the public, and, even though the Court rejected this plea in limiting its grant of review to the PSD program, the Chamber has continued to argue that this important program is limited to “conventional” or “localized” air pollutants (like soot and smog), a conclusion in significant tension with Mass v. EPA.  So far, the Chamber has amassed a perfect 6-0 record this Term, but the biggest decisions are still yet to come.  The question remains:  Will this be yet another big term for Big Business, or has the Chamber finally gone too far for the Roberts Court?

5)      The Petitioners Divided Against Themselves:  Pretty much the only thing that all of the Petitioners in the Greenhouse Gas Cases agree on is that the EPA misinterpreted the CAA—nevermind that the D.C. Circuit (in an opinion signed by Judge David Sentelle, a staunch conservative) concluded that the EPA’s interpretation was “unambiguously correct” and “statutorily compelled.”  The Petitioners don’t agree on what the statute actually requires, or how far the Court should go to check the “lawless” Obama Administration.  Some of their interpretive suggestions, if accepted by the Court, may only do minimal damage to the EPA’s efforts to regulate greenhouse gas emissions through the PSD program, while others would exclude them from the program altogether.  The State of Texas even urges the Court to reconsider Mass v. EPA, if necessary.  Therefore, even if the Court sides with the challengers, it’s still an open question just how broadly the Court will rule, which Petitioners will go home happy, and how much damage the Court will have done to the EPA’s efforts to combat climate change.

6)      The Supreme Court in an Age of Gridlock:  The CAA is a sweeping law designed to address a complex, ever-changing problem—air pollution.  In previous decades, bipartisan majorities in Congress revised the Act periodically, often fine-tuning it to ensure that its text kept up with the times.  It’s now been nearly a quarter-century since Congress’s last round of major revisions, and ongoing congressional deliberation and revision have been replaced with congressional gridlock.  This has given rise to a familiar pattern, evident in this case—and likely to be replicated over and over for the foreseeable future.  The President acts under the authority granted by an old law; interested parties challenge the President’s actions in court; and, for the most important disputes, the Supreme Court gets the final say—with little chance of responsive legislation by Congress, as confirmed by Professor Richard Hasen’s empirical study of congressional overrides.  In other words, in this age of gridlock on Capitol Hill, power naturally shifts not only to the President, but also, and ultimately, to the Supreme Court—the least accountable, least transparent branch of government.

Tom Donnelly is the Constitutional Accountability Center’s Message Director and Counsel. Prior to joining CAC, Tom served as a Climenko Fellow and Lecturer on Law at Harvard Law School. The the Constitutional Accountability Center filed amicus briefs in both the cases mentioned above.

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