Supreme Court: (From a Federalist Society Podcast)

“On Monday, February 24, 2014, the Supreme Court heard oral arguments in the highly anticipated greenhouse gas case, Utility Air Regulatory Group v. Environmental Protection Agency.

The issue at hand is whether the 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. In adopting the regulations now before the Court, the EPA construed specialized provisions of the Clean Air Act designed primarily to regulate a limited number of air pollutants for which the EPA has established “National Ambient Air Quality Standards” to apply to any airborne compound regulated under any provision of the Clean Air Act, including carbon dioxide and other greenhouse gases.

To avoid the costs and administrative burdens that would otherwise result from this interpretation, the EPA purported to alter specific numerical permitting thresholds that Congress had written into the Clean Air Act. Additionally, the EPA claimed the power to make further alterations to these thresholds on an ongoing basis. Our expert offered a summary and his impressions of the oral arguments.”

Below is SEPP’s summary of Mr. Gasaway’s summary.

The issues addressed were 1) how can the EPA Prevent Significant Deterioration (PSD) of the atmosphere under the Clean Air Act and 2) under what permitting process. On a case by case basis, the number of permits for greenhouse gases (GHG) could include up to 6 million facilities, which would be an absurd result. Without legislative guidance, the EPA raised the threshold of emissions from a facility before it requires permitting under the claim of administrative necessity.

Among the possible outcomes are: 1) clear win for the EPA, 2) clear win for the plaintiffs, court to say no to the EPA, and 3) a middle ground that if a facility needs to apply for a PSD, then it can be regulated for GHG.

[During the arguments, the Justices can interrupt at any time.] The questions asked with presented five major groups. 1) Extreme deference – the issue is so complex that the courts must defer to the expert agency, the EPA. 2) What would Congress do? Exclude CO2 or make exceptions to the strict limits in the law. 3) In the future will the EPA try to reduce dividing line between regulated and unregulated facilities? For what other pollutants will the EPA try to re-write regulations? 4) A major issue is applying a decision that pertained to motor vehicles to stationary facilities. There was no case law for this in the EPA brief. What is the best case law that can apply? 5) If the EPA should lose in part, what is the second-best position for the EPA? (If you don’t win, how would like to lose?)

To the last question, the Solicitor General, representing the EPA, answered in a way that surprised the commentator, Robert Gasaway: separate carbon dioxide (CO2) from the five other GHG and regulate it separately.

To Mr. Gasaway, the bottom line for the Solicitor General is that the problem is increasingly urgent, and rapid action is necessary. [SEPP Comment: Climate change is an increasingly urgent problem because global warming has stopped?]

The bottom line for the plaintiffs was two-fold: 1) that even if only large facilities are regulated, the details of the permitting would a major administrative burden and 2) the re-writing of the statutes by the EPA is a contradiction to the Constitutional concept of separation of powers.

Predictions: None!

Full Report from The Week That Was by SEPP
(redundant download source)

Also see Litigation Issues

Court to Rule on Greenhouse Gases – Utility Air Regulatory Group v. EPA – Podcast
By Robert Gasaway, Environmental Law & Property Rights and Litigation Practice Groups Podcast, Feb 25, 2014, 45:33 minutes [H/t James Wallace]
http://www.fed-soc.org/publications…

Justice Kennedy skeptical of EPA’s powers
By Laura Barron-Lopez, The Hill, Feb 24, 2014
http://thehill.com/blogs/e2-wire/e2…

‘King’ Obama’s EPA Likely To Be Weaker After High Court Ruling
By Dana Milbank, IBD, Feb 25, 2014
http://news.investors.com/ibd-edito…
From a Washington Post reporter
[Justice] Breyer was delighted. “I’m not a net emitter of carbon dioxide,” he declared. “That means I’m a part of sustainable development.”

Supreme Court takes on greenhouse gas emissions case
By Sean Lengell, Washington Examiner, Feb 24, 2014
http://washingtonexaminer.com/supre…

Obama’s Climate-Change Policy Questioned at Supreme Court
By Greg Stohr and Mark Drajem, Bloomberg, Feb 24, 2014
http://www.businessweek.com/news/20…

Supreme Court weighs EPA powers on clean air
Greenhouse gas rules probed
By Stephen Dinan, Washington Times, Feb 24, 2014
http://www.washingtontimes.com/news…

EU’s Highest Court Rules Spain Fuel Tax is Unlawful
Spain May Have to Refund as Much as €13 Billion to End-Users
http://online.wsj.com/news/articles…