EPA at the Supreme Court, round two

A power plant

A power plant

As the White House prepares to unveil a new rule to cut carbon-dioxide emissions from existing coal- and gas-fired power plants, the Supreme Court is preparing to rule on the scope of federal power to protect the environment.

The president’s anticipated Monday announcement will come during the same month—possibly the same day—that the nation’s high court issues its decision in Utility Air Regulatory Group v. Environmental Protection Agency, the lead in a consolidated group of six lawsuits known collectively as the “Greenhouse Gas Cases.”

Already this year, the Supreme Court upheld the EPA’s authority to regulate cross-state air pollution with a 6-2 ruling on April 29 in EPA v. Homer. Whether the Court sides again with the federal government remains to be seen.

Utility Air turns on competing interpretations of the Clean Air Act, first passed in 1963 and amended several times after in order to empower the EPA to develop appropriate controls on “any air pollutant.” For more than three decades, the agency has consistently interpreted the CAA to “trigger” expanded authority if it decides to regulate even one form of air pollution.

In 2010, the EPA drew upon that power when it found that its decision to regulate emissions from cars and trucks “triggered” the authority to regulate emissions from stationary sources like power plants and industrial factories. It is to this extension of control that a group of states, businesses and advocacy groups unanimously objected, and it is on this issue alone that the Supreme Court will rule.

EPA opponents did ask the Court to consider a variety of additional questions—for example, does the EPA have the authority to regulate greenhouse gases at all?—but were largely denied.

The Court’s decision to narrow the stakes appears to leave intact a 2007 decision in Massachusetts v. EPA, in which the Court ruled that the EPA is indeed able to regulate greenhouse gases, provided that it determines a clear threat to public health and the environment.

Lyle Denniston of SCOTUSblog, who also contributes to Constitution Daily, envisions two possible tracks the Court will take in deciding the case. The “broad version” of the issue at hand would focus on the validity of the statutory “trigger”—an interpretation the EPA has recognized and followed for many years—whereas the “narrower version” would question use of the “trigger” in the first place.

The latter track would address the EPA’s adjustment of the emission thresholds for stationary sources required to bring those sources under federal control.

According to the EPA, the plain text of the CAA spells out thresholds so low as to exponentially expand the number of sources for which regulation would be required, thus making administration effectively impossible. Opponents say such flagrant variation from statutory language is not permitted.

At oral arguments on February 24, attention was focused squarely on Justice Anthony Kennedy as court watchers listened keenly for an indication of how he will cast the likely deciding vote. Although Kennedy voiced concern that U.S. Solicitor General Donald Verrilli had not cited any precedent in support of the EPA’s actions, he did not appear ready to embrace EPA opponents represented by Peter Keisler of Sidley Austin LLP and Texas Solicitor General Jonathan Mitchell.

A decision will be announced by the end of June.

Nicandro Iannacci is a web strategist at the National Constitution Center.

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