A big Supreme Court win on 'greenhouse gas' regulations for the EPA

The idea that today’s Supreme Court ruling could be spun as a “loss” or “setback” for the Environmental Protection Agency is puzzling.  As the L.A. Times reports, no less than conservative colossus Justice Antonin Scalia said the EPA “is getting almost everything it wanted in this case.”

The Supreme Court in a split decision Monday upheld most of the Obama administration???s environmental rules designed to limit greenhouse gases from power plants.

The outcome is likely to be welcomed by environmentalists because it confirms the Environmental Protection Agency???s authority to restrict greenhouse gases.

The justices handed down two separate rulings in a dispute over permits for new or modified power plants and factories.

In a 7-2 vote, the justices agreed the Environmental Protection Agency could force major polluters to use new and better technology to limit their emissions of carbon dioxide.

???These are major polluting facilities, such as factories and coal-fired power plants,??? said Justice Antonin Scalia, and they are already subject to EPA restrictions. Now, those restrictions can include limits on greenhouse gases, he said.

The only disappointment faced by the regulatory State was that a separate 5-4 decision kept it from extending this authority to “millions of other facilities,” as the L.A. Times puts it, although I think that could be more properly rendered as “virtually all other facilities.”  The greenhouse-gas fantasy retains its grip on power plants, but at least they can’t make nearly every construction project pull “greenhouse gas permits,” which is where all of this was headed.  Today’s ruling also won’t do anything to stop the broader War on Energy carried out by the Obama Administration.  Considering what they won at the Supreme Court, their losses are trivial.

The deeper problem the Supreme Court should have addressed, but did not, is that Congress never granted the EPA the immense regulatory power over CO2 they are exercising… a little detail the L.A. Times gracefully glides over during its summary of the case:

In 2007, the Supreme Court ruled that the EPA had the authority to regulate these gases as air pollutants under the Clean Air Act.

The current case focused on one of two methods the EPA can use to accomplish that — its permitting rules.

Under the Clean Air Act, new facilities that are expected to emit more than a certain amount of harmful pollutants must obtain a permit in advance.

When the EPA added carbon dioxide to the pollutants they regulate, the agency also decided to raise the established limits without congressional approval. That’s because carbon dioxide is so plentiful that a literal interpretation of the Clean Air Act could have extended the new rules to thousands of houses, office buildings and shopping malls.

The agency preferred to focus the rules on large industrial facilities. Although that move exempted most businesses from regulation, it also left EPA open to attack from industry lawyers, who accused it of rewriting the law to support its regulations.

“Rewriting the law” is a debatable way to phrase the charge, but the Clean Air Act was so broadly written that the EPA was indirectly granted the power to grant itself as much power as it wants.  It would have been wiser to include a specific list of pollutants subject to the agency’s authority, and require them to seek congressional authorization for expanded powers.  The current viral multiplication of regulatory authority was not foreseen in 1970… or else those who foresaw and welcomed it had the tactical sense to keep quiet about it.

As it stands, the wording about the type of facility covered by the Clean Air Act was tighter, producing the odd situation described in the Wall Street Journal’s summary of Scalia’s opinion: they can regulate carbon dioxide emissions, but they can’t use carbon dioxide emissions as a pretext to expand the number of facilities they have dominion over.

Justice Scalia chastised the EPA for rewriting a clean-air permitting program established by Congress. The program requires large emitters of certain pollutants to obtain permits before expanding or modernizing. Those facilities must limit emissions by adopting the “best available” technologies.

The EPA’s approach “would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization,” Justice Scalia wrote. Justice Scalia said the EPA couldn’t bring emitters into the program solely based on their greenhouse-gas emissions, but could require greenhouse-gas controls at facilities that are already covered by the regulations thanks to their emissions of other pollutants.

“It bears mention that EPA is getting almost everything it wanted in this case,” Justice Scalia said from the bench. The ruling allows the agency to regulate 83% of greenhouse-gas emissions, he said, while the regulation the court struck would have raised that percentage to 86%.

“To permit the extra 3%, however, we would have to recognize a power in EPA and other government agencies to revise clear statutory terms,” he said, adding that would contradict “the principle that Congress, not the president, makes the law.”

Pardon me for thinking “the principle that Congress, not the President, makes the law” is looking a bit threadbare these days, Justice Scalia.  In one sense, it actually is somewhat remarkable to see an Administration power grab slapped back, even if it’s only a 3 percent rap on the knuckles.  But for the most part, it’s business as usual: the executive branch has more to say about the limits of its own power than the legislature.  One can only wonder how much of the rest of the regulatory state might have come tumbling down, if this decision had gone wholly against the EPA.

Once again, let it be noted that while the conservative and “swing” justices had a lively debate about the proper limits of statutory power, the liberal justices reflexively rubber-stamped government’s desires.  Slip another rubber stamp or two onto the Court, and you’ll be amazed at how few limits the federal government is obliged to respect.