The Supreme Court announced this morning that it would hear a major case that challenges the Environmental Protection Agency’s (EPA) ongoing regulations of greenhouse gases. The petition, brought by an alliance of industry groups and Republican-led states like Texas appealing a recent federal court ruling that unanimously upheld the climate regulations, challenges whether the EPA is allowed to set up regulations that would limit greenhouse gases from so-called stationary sources, like power plants and factories. The hearings, set for next year, could allow the Court to scale back the Obama Administration’s climate regulations at a time when the chance of passing legislation to limit carbon emissions—long the preferred route of the White House and most environmental groups—seems virtually nil.
A little background: the EPA regulations stem from a landmark 2007 decision in Massachusetts vs. EPA, in which the Court ruled that the EPA had the authority under the Clean Air Act to limit emissions of greenhouse gases from vehicles, if the agency determined that greenhouse gases endangered the public welfare. In 2009, Obama’s EPA concluded that greenhouse gases did just that, which created the justification for regulations that will eventually impact existing power plants, the largest unregulated source of greenhouse gases. Those regulations aren’t yet in place—Obama has given the EPA until next summer to propose the rules.
A Supreme Court decision that goes against the EPA could scramble those plans, but it’s important to note that the Court is looking at one fairly narrow legal question: whether the EPA’s accepted ability to regulate motor vehicle emissions gives it the power to regulate stationary sources as well. The Court declined to hear petitions to challenge the EPA’s basic finding that greenhouse gases are a threat to public welfare, and won’t revisit the original 2007 decision that gave the EPA the power to regulate those gases for vehicles. That means the Administration’s far-reaching work to reduce greenhouse gas emissions from automobiles by toughening fuel efficiency standards won’t be at risk.
Vickie Patton, general counsel at the Environmental Defense Fund, noted that the Supreme Court had let the most important arguments underpinning the EPA regulations to stand:
Today’s orders by the U.S. Supreme Court make it abundantly clear, once and for all, that EPA has the both legal authority and the responsibility to address climate change and the carbon pollution that causes it.
But there’s no doubt that this case will be a test for the Obama Administration and its green allies—and an opportunity for industry groups and conservatives who have long attacked the EPA regulations for the impact they might have on the U.S. economy. “The Supreme Court’s decision to grant cert will, we hope, ultimately put the brakes on EPA’s unprecedented regulatory barrage of global warming rules,” Competitive Enterprise Institute (CEI) general counsel Sam Kazman said in a statement. (CEI is a co-petitioner in the challenge to the EPA rules.) If nothing else, the looming case will add more uncertainty to the politically charged regulatory process.
The Court’s decision also underscores the political risk of choosing a regulatory attack on greenhouse gas emissions. Not that either the Obama Administration or environmentalists had much choice—the first, best option was always comprehensive climate legislation, which would have established a negotiated cap on U.S. carbon emissions. EPA regulations were considered a fallback plan, something to subtly push Congress towards a climate law. That almost happened in 2009, when the Democratic-led House barely passed climate legislation before it floundered in the Senate. Once Republicans took the House in 2010, climate legislation was off the table.
That left regulation, as President Obama made clear in his 2013 State of the Union address:
I urge this Congress to pursue a bipartisan, market-based solution to climate change, like the one John McCain and Joe Lieberman worked on together a few years ago. But if Congress won’t act soon to protect future generations, I will. I will direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.
Congress didn’t act, and given the current deadlock, is unlikely to act any time soon. Now the Supreme Court will have its say.