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Supreme Court reaffirms EPA authority to regulate greenhouse-gas emissions – with warnings

Power plants, as well as some other stationary sources, are subject to review about pollutants into the air now, anyway. Another piece has to be analyzed with this decision

The U.S. Supreme Court has reaffirmed the Environmental Protection Agency’s (EPA) authority to regulate greenhouse-gas emissions, but the Utility Air Regulatory Group vs. Environmental Protection Agency decision released this week also warned the EPA about exceeding its authority.

The decision will impact manufacturing facilities and power plants – but not such locations as apartment buildings – and it was seen as a decision which was supported by environmental groups as well as businesses.

It does not look like the case will lead to attorneys having to spend a lot of time interpreting the language and its policy implications.

“I don’t think it’s going to raise a lot of questions,” Bicky Corman, a former deputy General Counsel at the EPA who is now a partner at Venable, told InsideCounsel. There has been previous guidance from the government on controlling greenhouse gases.

“We’re not necessarily starting from scratch,” she added.

Power plants, as well as some other stationary sources, are subject to review about pollutants into the air now, anyway. Another piece has to be analyzed with this decision.

There is “maybe more legal significance than practical significance” with the ruling, Corman commented.

 

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In addition, many of the businesses concerned with the outcome of the case appear to be more interested in the precedent the ruling could have set than its economic impact because analysis was going to take place on emissions anyway.

“It bears mention that EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said from the bench. “It sought to regulate sources that it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.”

Scalia wrote the decision, which was supported in a divided vote. In addition, this marks the third Supreme Court decision that said the EPA can regulate greenhouse gases as pollutants.

“Today is a victory for the integrity of our regulatory process and rational limits on executive power,” National Association of Manufacturers (NAM) General Counsel Linda Kelly said in a statement after the ruling. “The Supreme Court agreed with the NAM that the EPA may not regulate the entire economy by requiring burdensome new permits for millions of small and medium-sized manufacturers, schools, hospitals, office buildings, churches, warehouses and other buildings.”

“As the EPA considers its next suite of GHG regulations for new and existing power plants, manufacturers encourage the agency to heed the warning of the Supreme Court that it may not ‘bring about an enormous and transformative expansion in the EPA’s regulatory authority without clear congressional authorization,’” she added. “We applaud our nation’s highest court for upholding both the letter and the spirit of the law.”

From another source, Joanne Spalding, an attorney for the Sierra Club, said the “Supreme Court’s ruling means that the largest new industrial facilities will need to limit their greenhouse gas emissions.”

On the other hand, Texas Attorney General Greg Abbott said in a statement, “The Court’s ruling affirms that we are a nation of laws, and the President and his executive agencies must follow the law just like anybody else. When they do not, the courts will hold them accountable. This is a great victory for the rule of law and for the Constitution. It is a resounding defeat for those, like the President, who would use unelected bureaucracies to override the will of the people.”

Scalia’s opinion also gave the federal government a warning not to go too far. "We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery," Scalia said in his opinion.

Contributing Author

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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