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Climate change goes back to the Supreme Court

Climate change policy is back at the Supreme Court.  This morning, the Supreme Court will hear 90 minutes of oral argument (as opposed to the usual 60) in Utility Air Regulatory Group v. EPA and consolidated cases.   The case involves a challenge to an Environmental Protection Agency decision to regulate greenhouse gases under certain portions of the Clean Air Act.   Though styled by many as a challenge to EPA’s judgment, the case is really about the judgment of the High Court itself, as it forces the Court to consider some of the ramifications of its decision in Massachusetts v. EPA.

A bit of background: In 2007, in Massachusetts a closely divided Court concluded that greenhouse gases constitute air pollutants under the Clean Air Act, at least for purposes of Section 202, which requires the EPA to control emissions from new motor vehicles if it concludes that such emissions contribute to pollution that may be reasonably anticipated to threaten public health or welfare.  In its opinion, the Court rejected the EPA’s argument that recognizing GHGs as air pollutants would create implementation problems for the agency.  As I and others argued at the time, this was a naive reading of the Act.

In response to the Court’s Massachusetts decision, the EPA concluded the GHGs did pose the requisite threat and adopted regulations limiting emissions from motor vehicles.  The EPA also concluded that the Court’s conclusion that GHGs are air pollutants under the Act required it to regulate emissions from stationary sources as well. This created a problem.  As the EPA quickly concluded, it lacks the staffing and resources to regulate GHGs in accordance with the statutory text.

The source of the problem is that the stationary source provisions of the Act require the regulation of all facilities that emit more than set levels of covered pollutants, either 250 or 100 tons per year.  These thresholds make perfect sense for traditional air pollutants, such as sulfur dioxide.  Applied to GHGs, however, these thresholds increase the universe of regulated facilities many times over — so much so that the EPA estimated that it would require $21 billion and 230,000 more employees to fulfill the relevant statutory obligations.   Given that neither the EPA nor cooperating state regulatory agencies have anywhere near the requisite resources for this undertaking, the EPA created an out. It redefined the statutory thresholds for regulation under the relevant provisions of the Act, substituting 75,000 and 100,000 tons per year for 100 and 250 tpy, and reserved the authority to redefine these thresholds further as circumstances allow.  This rule was challenged in the D.C. Circuit, along with the EPA’s other GHG-related actions, to no avail.  (For my posts on the D.C. Circuit litigation, see here, here, and here.)

Focusing EPA’s efforts on the largest emitters of GHGs may make more sense than a literal application of the Clean Air Act’s text (though not as much sense as would a carbon tax), but that’s not what Congress told EPA to do.  If the EPA is required to treat GHGs as air pollutants for the relevant provisions of the Act, it has no choice but to do as the statute commands.  What’s the alternative?  One possibility is to conclude that what constitutes an “air pollutant” under one portion of the Act need not necessarily constitute an “air pollutant” for other portions of the Act, at least where adopting a uniform interpretation would either produce absurd results or require the EPA to take liberties with other provisions of the Act.  After all, if the word “modification” can mean different things in different parts of the Act, why can’t “air pollutant”?  Such a decision would not take the EPA completely out of the climate change business, but it would prevent the agency from exercising authority unmoored from the statutory text.

By way of disclosure, let me also note that I participated in an amicus brief of administrative law professors calling upon the Court to reconsider the implications of Massachusetts v. EPA, at least insofar as it is necessary to constrain the EPA’s ad hoc rewriting of statutory text.  Treating the definition of “air pollutant” differently in different portions of the Act is far less disruptive than allowing an agency to rewrite the plain numerical thresholds contained in the Act.  Such statutory revision is the job of Congress, not the EPA — and I say this as someone who would like the federal government to do more (albeit different) things to address the threat of climate change.

For additional perspectives and background on the case, see these posts at Legal Planet by Dan Farber, Ann Carlson, and Richard Frank.  The full range of briefs, and additional commentary, are also available on SCOTUSBlog.