Supreme Court Decisions A Mixed Bag for Climate Change Regulations

Efforts to regulate businesses that produce large quantities of carbon dioxide emissions suffered a minor setback Monday after the Supreme Court struck down a key regulatory exemption in a 5-4 decision split down ideological lines. In 2009, the Environmental Protection Agency (EPA) announced regulations requiring new facilities that emit more than 100,000 tons of carbon dioxide annually to apply for special permits under the authority of the Clean Air Act, which empowers the agency to regulate sources of harmful pollutants. The New York Times reports: The Clean Air Act says those programs cover all sources that can annually emit 100 or 250 tons of the relevant pollutant, a threshold that works tolerably well for conventional air pollutants like lead and carbon monoxide. But that threshold, applied to greenhouse gases, which are emitted in far greater amounts, would require the regulation of millions of sources of pollution. Applying the law as written would increase the number of covered sources under one program to more than 80,000, from fewer than 280, reaching commercial and residential sources and subjecting them to expenses averaging almost $60,000, according to a decision under review, from the United States Court of Appeals for the District of Columbia Circuit. A second program would reach six million sources, subjecting them to expenses of more than $20,000 each. The cost of the programs would rise to $21 billion from $62 million.The EPA argued that these considerations justified the exemptions, since Congress could not have foreseen such an “absurd result.” The Supreme Court rejected the EPA’s reasoning and ruled that the agency does not have the authority to unilaterally create exemptions to the Clean Air Act without congressional approval. “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms,” Justice Scalia wrote in the majority decision. Monday’s ruling was not a complete loss for the EPA; in a separate 7-2 decision, the justices upheld the agency’s ability to regulate carbon dioxide emissions for facilities that need permits based on their emissions of more conventional pollutants, such as dioxin or mercury.