Supreme Court largely upholds EPA’s greenhouse gas powers

The Environmental Protection Agency appeared to notch another legal victory on Monday as the Supreme Court affirmed the agency’s power to regulate greenhouse gas emissions.

The split decision, delivered by Justice Antonin Scalia, does chip away at the agency’s authority, concluding that the EPA went too far in seeking to impose restrictions on power plants and other sources of greenhouse gas emissions.

{mosads}But despite a chiding from the court for overreach, the agency said it got most of what it wanted in the ruling, thanks to an additional finding — supported by Scalia and six of his colleagues — that the EPA may require a greenhouse gas permit on any entity that already requires a permit for traditional pollutants such as soot and nitrogen oxide.

That, Scalia notes, means the agency will be able to regulate polluters responsible for 83 percent of the greenhouse gas emissions coming from power plants and other stationary sources.

The EPA’s plan had targeted 86 percent, meaning its plan — a component of President Obama’s climate change initiative — remains largely intact.

“The Supreme Court’s decision is a win for our efforts to reduce carbon pollution because it allows EPA, states and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources,” EPA spokeswoman Liz Purchia said.

The agency, meanwhile, downplayed the court’s admonishment for exceeding its authority under the Clean Air Act.

The forcefully worded opinion checks the EPA’s authority to “tailor” parts of the landmark law in an effort to reconcile it with the administration’s policy goals.

“EPA asserts newfound authority to regulate millions of small sources — including retail stores, offices, apartment buildings, shopping centers, schools, and churches — and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate,” Scalia wrote.

“We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery,” wrote Scalia in a portion of decision backed by the court’s other four conservative justices.

Congressional Republicans and industry groups seized on the language as a clear signal that the Obama administration couldn’t impose its climate change initiative unilaterally.

Trade groups representing the coal, manufacturing and oil and gas industries issued statements praising the court for declaring limits on the agency’s regulatory authority.

“The Supreme Court today gave notice that it is wise to this administration’s creative interpretation of the Clean Air Act,” said Laura Sheehan, senior vice president for communications American Coalition for Clean Coal Electricity. “We are hopeful EPA’s massive mission creep will be subject to the scrutiny it deserves and stricken down by the judiciary in the future.”

Peter Glaser, an attorney at the firm Troutman Sanders, whose clients include mining and utility interests, rejected the notion that the EPA prevailed in the case.

The court’s finding that the EPA overreaches in its “creative interpretation” of the Clean Air Act could also be applied to the administration’s separate proposal to limit greenhouse gas emissions from existing power plants under a different provision of the law, he said.

That regulation, unveiled earlier this month, faces inevitable legal challenges as well.

“You can’t jus rewrite the statute to do what you want,” Glaser said. “It’s a nice try for EPA to say they won here.”

Greg Dotson, vice president of energy policy for the liberal-leaning Center for American Progress, countered that the court’s rejection of the EPA’s proposal was narrow in scope, and has no bearing on other programs.

“When you actually look at what the opinion actually finds and does, it doesn’t in any way limit EPA’s authority in any other provision of the act,” he said.

For the agency, Monday’s decision follows a formidable winning streak in which federal courts in April and May upheld the agency’s air pollution decisions eight times and never ruled against it.

The string of wins gave EPA officials confidence that courts trusted their interpretations of the Clean Air Act and that they had wide leeway in their efforts to prevent air pollution, including carbon dioxide emissions.

The courts sided with the EPA on rules limiting power plant mercury emissions, air pollution that crosses state lines and the renewable fuel standard, among others.

Washington’s spin machines were operating at full bore following the latest ruling, which drew praise both from those who want to limit the EPA’s ability to regulate greenhouse gas emissions and those who support it.

The National Federation of Independent Businesses said the ruling stopped the EPA from “rewriting” the Clean Air Act.

“If this rule had been allowed to stand, small business owners such as ranchers, farmers, manufacturers, restaurant owners and others would have seen more paperwork, more oversight and fines,” Karen Harned, executive director of the group’s legal center, said in a statement.

Reps. Fred Upton (R-Mich.), chairman of the House Energy and Commerce Committee, and Ed Whitfield (R-Ky.), who leads the panel’s Energy and Power subcommittee, said the Obama administration should view the decision as a “reality check.”

“The court recognized the EPA does not, in fact, have unlimited authority, despite the agency’s best effort to control every sector of the U.S. economy,” the lawmakers said in a joint statement issued Monday afternoon.

Green groups, meanwhile, sought to couch the opinion as a clear win for proponents of tougher air quality rules.

Vickie Patton, general counsel at the Environmental Defense Fund, celebrated the fact that the EPA will still be able to regulate 83 percent of carbon emissions from stationary sources.

“EPA’s foundational authority under the Clean Air Act to protect Americans’ health from the clear and present danger of climate pollution is rock solid,” she said.

—This story was posted 12:00 p.m. and updated at 5:30 p.m. and 7:40 p.m.