U.S. Supreme Court

SCOTUS partially limits EPA's greenhouse gas authority; Scalia says EPA got most of what it wanted

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The U.S. Supreme Court partially curbed the Environmental Protection Agency’s authority to regulate greenhouse gases in a decision released on Monday.

Justice Antonin Scalia announced the opinion (PDF) for the court, which sided with industry on one greenhouse-gas issue and with the EPA on the other. Speaking from the bench, Scalia termed the decision a win for the EPA, the Washington Post reports.

“EPA is getting almost everything it wanted in this case,” Scalia said. “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.”

Siding with industry, the court ruled 5-4 that the EPA exceeded its authority under the Clean Air Act when it sought to impose permitting requirements on factories, power plants and other “stationary sources” of greenhouse gases based solely on their potential to emit greenhouse gases. Nor did the EPA have authority to limit the impact of its claimed authority in this area by subjecting only larger polluters to permitting requirements, Scalia said.

Joining Scalia in that portion of the opinion were Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

The court ruled 7-2 for the EPA on the second issue, however, finding that a stationary source that is already regulated because it emits conventional pollutants—an “anyway” source—can be required to limit greenhouse-gas emissions by using the “best available control technology” for greenhouse gases. “Anyway” sources account for about 83 percent of U.S. stationary-source greenhouse gas emissions, Scalia said in his opinion, citing the U.S. Solicitor General.

Joining Scalia in that section of the opinion were Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

“Even if the text were not clear,” Scalia wrote, “applying [best available control technology] to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to convince us that EPA’s interpretation is unreasonable. We are not talking about extending EPA jurisdiction over millions of previously unregulated entities, but about moderately increasing the demands EPA (or a state permitting authority) can make of entities already subject to its regulation.”

The case is Utility Air Regulatory Group v. EPA.

Prior coverage:

ABA Journal: “Did the EPA go too far in regulating greenhouse gases? SCOTUS to decide”

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