Global-Warming Case Tests The Limits Of An Aging Clean Air Act

Feb 20 2014, 7:09pm CST | by

The U.S. Supreme Court on Monday will hear arguments in a case that really ought to be debated in the halls of Congress: Whether greenhouse gases can be regulated the same as any other air pollutant.

Certainly Congress wasn’t thinking of carbon dioxide when it passed the Clean Air Act in 1970. The law was designed to reduce soot, ozone and other pollutants that contributed to smog and breathing problems on the ground. There was a direct relationship between reducing these pollutants and the quality of the air in cities like Los Angeles and New York.

In Utility Air Regulatory Group v. EPA, that relationship breaks down. The Obama administration is defending strict new controls on carbon-dioxide emissions from power plants that arguably will have no effect – or even a negative one – unless nations like China and India follow suit. In fact, to the extent the EPA regs burden U.S. power consumers, they may shift production to low-cost nations and accelerate the growth of their CO2 emissions.

The case flows out of the Supreme Court’s 2007 decision in Massachusetts v. EPA, which rejected the Bush administration’s attempt to keep CO2 out of the EPA’s jurisdiction. In Massachusetts the court  held that greenhouse gases fit within the Clean Air Act’s definition of pollution as any substance that can “reasonably be anticipated to endanger public health or welfare,” and the EPA had no choice but to regulate them. (Ironic, in light of complaints that the Obama administration is similarly choosing not to enforce politically unpopular provisions of the Affordable Care Act.)

The court’s ruling set off a cascade of regulatory actions culminating in the EPA’s 2009 decision to limit greenhouse-gas emissions from cars. Following years of past practice, the agency then sought to apply similar standards to fixed emitters like power plants under the Prevention of Serious Deterioration program, a separate provision of the Clean Air Act that Congress established to limit pollution in so-called “attainment” areas with otherwise clean air.

The problem is, Congress set reasonable limits of 100-250 tons of pollutants as a trigger for PSP – reasonable, that is, assuming the “pollutants” were potent substances like sulfur dioxide. Even small businesses emit more than 100 tons of CO2 a year, and the EPA was faced with the “absurd result” of requiring millions of businesses to apply for federal permits and install expensive controls to remain open. So the agency set a “regulatory limit” for CO2 starting at 75,000 tons per year, which it says would cover 86% of commercial CO2 emissions without throwing the rest of the economy into chaos.

A federal appeals court in Washington upheld the new rules, but it may have given the Obama administration a little more than it wanted. It held the EPA was compelled to act under PSP. In its brief before the Supreme Court, the administration is merely asking for “substantial judicial deference.”

Opponents of the regs want the Court – or at least its five conservative justices – to read the definition of “pollutant” more narrowly as one of six specific substances like carbon monoxide and lead that are spelled out in other parts of the law. As is typical, Congress wasn’t consistent throughout the act and its various revisions, forcing judges to try and figure out what the legislators mean.

Texas and 11 other mostly Southern states filed a brief opposing the EPA, saying the definition of pollution as “all airborne compounds of whatever stripe” in Massachusetts is absurdly broad, since that would include healthy compounds like oxygen. Better to “cabin” greenhouse gases within the unambiguously broad definitions covering vehicles, Texas says, and limit the regulation of industrial emissions to the six specified pollutants.

The real problem is “a statute that hasn’t been revised in almost 25 years,” said Thomas Lorenzen, a partner with Dorsey & Whitney in Washington. “It is not suited for regulating greenhouse gases.”

Lorenzen should know: Before he went into private practice, he worked for the Justice Dept. and won this case for the EPA before the D.C. Circuit.

The argument by Texas and the utility industry that the EPA should limit regulation to the six specified pollutants “is a stretch of an argument, but it’s a stretch the EPA brought upon itself,” Lorenzen told me. By acknowledging the “absurd results” of enforcing the law exactly as it appears to be written, he said, the agency is opening the door for an alternative interpretation that hews more closely to the verbiage in the statute.

The easiest way to solve this conundrum would be to overrule Massachusetts, which extended the EPAs authority from the pollutants understood at the time the Clean Air Act was passed to the CO2 we all exhale with every breath. But Lorenzen thinks that unlikely. Opponents of the regulations have tailored their arguments to win over Justice Anthony Kennedy, who voted with the majority in  Massachusetts but displays a strong conservative streak when it comes to certain government programs such as affirmative action.

If they can get Kennedy to sign off on an opinion limiting PSD regulations to the six specific pollutants, most companies would never be sucked into the regulatory apparatus at all since the their main “pollutant” is CO2. Only power plants, which emit threshold levels of the other pollutants, would face greenhouse gas controls as well, he said.

Chief Justice John Roberts, in his dissent in Masschusetts, warned of the troubles that would arise from forcing the EPA to regulate carbon dioxide under a law that was designed to improve air quality for the people forced to breath it.

Global warming may be a “crisis,” even “the most pressing environmental problem of our time.” Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

Source: Forbes Business


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