Today’s Supreme Court decision in Utility Air Regulatory Group v. EPA is potentially a huge setback for the climatistas and the Obama administration’s recent proposal to regulate greenhouse gases through the Clean Air Act, though it is a complicated opinion and will take a while to unravel. It is a typical 5 -4 ruling along the usual lines, but in some ways appears to be a 9 – 0 vote against the EPA on the narrow holding, as the Court’s opinion features multiple partial concurrences and partial dissents about various sub-parts of the opinion that make it confusing to unravel. (And I’m in a conference all day long.)
I wrote about the core of the dispute here on Power Line three years ago, which I’ll repeat here:
Here’s the problem, long predicted by me and lots of other folks who know how the Clean Air Act works. The Act says any stationary source that emits as little as 100 tons a year of a pollutant must get annual permits from state agencies and the EPA. 100 tons is a lot if you’re looking at pollutants like volatile organic gases (unburned hydrocarbons) that contribute to ozone, but is a tiny amount for carbon dioxide. Your average fast-food restaurant or donut shop or apartment building easily emits 100 tons of CO2. Right now about 14,000 stationary sources have to get annual emission permits under the Act. By regulating CO2 through the Clean Air Act, the number of businesses that will require EPA permits will be over 6 million.
Who says this? The EPA itself, in a recent analysis:
Sources needing operating permits would jump from 14,700 to 6.1 million as a result of application of Title V to greenhouse gases, a 400-fold increase.…Hiring the 230,000 full-time employees necessary to produce the 1.4 billion work hours required to address the actual increase in permitting functions would result in an increase in Title V administration costs of $21 billion per year.
Totally absurd, right? The EPA agrees, but it is planning to go ahead anyway. Here’s more from their analysis:
While EPA acknowledges that come 2016, the administrative burdens may still be so great that compliance at the 100/250 tpy [tons per year] level may still be absurd or impossible to administer at that time, that does not mean that the Agency is not moving toward the statutory thresholds. To the contrary, through this regulatory process “EPA intends to require full compliance with the CAA applicability provisions of the PSD and Title V programs….” (Emphasis added.)
Nice going Supreme Court. It is obvious to anyone that Congress would never approve such an absurd result in ordinary legislation, but our administrative state, with a supine judiciary giving them the green light, charges right ahead. [End of excerpt from my original post.]
Now back to today’s ruling, in which the Court may have started to walk back its mistake in Massachuseets v. EPA. Justice Scalia wrote the main opinion, and completely rejects the EPA’s “tailoring” rule, which sought to restrict the reach of their permitting activity. First, Scalia says that the Clean Air Act permits, but does not require, the EPA to regulate greenhouse gases. But more significant, Scalia said the EPA overstepped its statutory authority in attempting the tailoring rule. From the syllabus:
EPA lacked authority to “tailor” the Act’s unambiguous numerical thresholds of 100 or 250 tons per year to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers. Agencies must always “ ‘give effect to the unambiguously expressed intent of Congress.’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 665. The power to execute the laws does not include a power to revise clear statutory terms that turn out not to work in practice. Pp. 20–24.
I’ll have to read through the entire opinion carefully to figure out the fine points and what it might portend for a challenge to Obama’s latest proposal. There is some other language in Scalia’s summary that suggests the new EPA proposal might survive legal challenge. But it is unlikely that the EPA will now propose permitting 6 million stationary sources, or hiring over 200,000 new employees to implement such a program. Go ahead, make my day.
UPDATE: Jonathan Adler has more here.
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