EPA Gets Smacked Around by SCOTUS (June 2014 )

powerlineblog.com ^ | June 23, 2014 | Steven Hayward

[Ernest_at_the_Beach]

Today’s Supreme Court decision in Utility Air Regulatory Group v. EPA is potentially a huge setback for the climatistas and the Obama administration’s recent proposal to regulate greenhouse gases through the Clean Air Act, though it is a complicated opinion and will take a while to unravel.  It is a typical 5 -4 ruling along the usual lines, but in some ways appears to be a 9 – 0 vote against the EPA on the narrow holding, as the Court’s opinion features multiple partial concurrences and partial dissents about various sub-parts of the opinion that make it confusing to unravel.  (And I’m in a conference all day long.)

I wrote about the core of the dispute here on Power Line three years ago, which I’ll repeat here:

Here’s the problem, long predicted by me and lots of other folks who know how the Clean Air Act works.  The Act says any stationary source that emits as little as 100 tons a year of a pollutant must get annual permits from state agencies and the EPA.  100 tons is a lot if you’re looking at pollutants like volatile organic gases (unburned hydrocarbons) that contribute to ozone, but is a tiny amount for carbon dioxide. Your average fast-food restaurant or donut shop or apartment building easily emits 100 tons of CO2.  Right now about 14,000 stationary sources have to get annual emission permits under the Act.  By regulating CO2 through the Clean Air Act, the number of businesses that will require EPA permits will be over 6 million.

Who says this?  The EPA itself, in a recent analysis:

Sources needing operating permits would jump from 14,700 to 6.1 million as a result of application of Title V to greenhouse gases, a 400-fold increase.…Hiring the 230,000 full-time employees necessary to produce the 1.4 billion work hours required to address the actual increase in permitting functions would result in an increase in Title V administration costs of $21 billion per year.

Totally absurd, right?  The EPA agrees, but it is planning to go ahead anyway. Here’s more from their analysis:

While EPA acknowledges that come 2016, the administrative burdens may still be so great that compliance at the 100/250 tpy [tons per year] level may still be absurd or impossible to administer at that time, that does not mean that the Agency is not moving toward the statutory thresholds. To the contrary, through this regulatory process “EPA intends to require full compliance with the CAA applicability provisions of the PSD and Title V programs….”  (Emphasis added.)

Nice going Supreme Court.  It is obvious to anyone that Congress would never approve such an absurd result in ordinary legislation, but our administrative state, with a supine judiciary giving them the green light, charges right ahead.  [End of excerpt from my original post.]

Now back to today’s ruling, in which the Court may have started to walk back its mistake in Massachuseets v. EPA.  Justice Scalia wrote the main opinion, and completely rejects the EPA’s “tailoring” rule, which sought to restrict the reach of their permitting activity.  First, Scalia says that the Clean Air Act permits, but does not require, the EPA to regulate greenhouse gases.  But more significant, Scalia said the EPA overstepped its statutory authority in attempting the tailoring rule.  From the syllabus:

EPA lacked authority to “tailor” the Act’s unambiguous nu­merical thresholds of 100 or 250 tons per year to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers. Agencies must always “ ‘give effect to the unambiguously expressed intent of Congress.’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 665. The power to execute the laws does not include a power to revise clear statutory terms that turn out not to work in practice. Pp. 20–24.

I’ll have to read through the entire opinion carefully to figure out the fine points and what it might portend for a challenge to Obama’s latest proposal.  There is some other language in Scalia’s summary that suggests the new EPA proposal might survive legal challenge.   But it is unlikely that the EPA will now propose permitting 6 million stationary sources, or hiring over 200,000 new employees to implement such a program.  Go ahead, make my day.

UPDATE: Jonathan Adler has more here.

[Ernest_at_the_Beach]

Related thread posted by neverdem:

SCOTUS Revisits EPA Regulation of CO2

American Thinker ^ | November 5, 2013 | S. Fred Singer

Posted on 11/5/2013, 8:06:40 AM by neverdem

[Amendment10]

Not only have the states never delegated to the feds via the Constitution the specific power to legislatively protect the environment, but the Founding States had made the first numbered clauses in the Constitution, Section 1-3 of Article I to clarify that Congress cannot delegate such powers to nonelected buraucrats even if Congress had such powers.

There! The issue is resolved in a single, constitutionally supported statement which took a minute to make. I wonder how much money was actually spent on legal fees, including taxpayer dollars for the Court to come to roughly the same conclusion?

The real question is the following. If parents were making sure that their children were being taught the federal government’s constitutionally limited powers, what’s the youngest grade level where students would independently come to the same conclusion?

[Ben Ficklin]

California was the only state to impose enviro regs(air quality) before the feds, which means, that only CA is allowed to set regulations more stringent than the feds.

Governor Reagan was the first gov to impose enviro regs on autos.

[trisham]

"One nation under God.."

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donate today!

[Ernest_at_the_Beach]

So what does the Court not point this out?

[GladesGuru]

1. Power plants burning coal are getting fewer in number.
2. The densely populated Big Sh*ty areas will have major power outages this winter, with the concometent costs and deaths.
3. These negative impacts to America are Obama’s doing.

STRIKE THREE!

Brought to the Big Sh*ties by Obama and the Democrats.

[Amendment10]

The problem is that law schools have evidently been indoctrinating even conservative students with FDR’s Constitution-ignoring garbage since he was able to establish an activist justice majority. And since people like you and me and a million others were born into this mess we think it’s normal.

[Amendment10]

"... California was the only state to impose enviro regs(air quality) before the feds [emphasis added], ..."

FR: Never Accept the Premise of Your Opponent’s Argument

As mentioned elsewhere, the states have never delegated to the feds, expressly via the Constitution, the specific power to regulate intrastate environmental issues.

Also, Reagan had the 10th Amendment-protected power to officially address environmental issues with his state.

[Marine_Uncle]

Hmmmm. Interesting ruling by the court. Now let us see how the goons in the EPA under the Kenyan proceed on this matter.