Supreme Court could derail Obama climate agenda

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Michael Bastasch DCNF Managing Editor
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The U.S. Supreme Court will hear a case on the Environmental Protection Agency’s power that could deal President Obama’s global warming plan a crippling blow.

“Them ruling against EPA on the issue would be a huge change in EPA’s intentions going forward,” a conservative environmental lawyer close to the issue told The Daily Caller News Foundation. “It will dramatically limit the scope of their future authority.”

“We can only read tea leaves into the few words that the court has put into the order,” said attorney Roger Martella who represents the American Chemistry Council in the case. “I think it clearly puts on the table questions about EPA’s authority to regulate greenhouse gases from stationary sources.”

Last week, the Supreme Court agreed to hear challenges to the EPA’s authority to regulate greenhouse gases from stationary sources, such as power plants.

Opposing the EPA’s authority over power plants are Texas, 12 other states and the U.S. Chamber of Commerce. Petitioners want the court to answer whether or not the EPA’s authority to regulate greenhouse gas emissions from mobile sources, like cars and trucks, extend to stationary sources?

“The EPA violated the U.S. Constitution and the federal Clean Air Act when it concocted greenhouse gas regulations out of whole cloth,” said Texas Attorney General Greg Abbott. “The EPA’s illegal regulations threaten Texas jobs and Texas employers.”

The centerpiece of Obama’s effort to tackle global warming are carbon dioxide emissions limits on new and existing power plants. The EPA’s recently proposed standards for new power plants would effectively ban the construction of coal-fired power plants — a major emitter of carbon.

A ruling against the EPA could severely derail the administration’s plans to take get utilities off of coal power and would require authorization from Congress moving forward.

Time to get wonky

The Supreme Court will be examining whether or not the EPA has the authority to require greenhouse gas permitting for stationary sources, like power plants, under the Clean Air Act. Under federal law, facilities need Title V permits that have long applied to traditional pollutants. Greenhouse gas permits have only applied to stationary sources since 2011.

However, the Clean Air Act was written before greenhouse gases were considered harmful to human health, a finding made by the EPA in 2009. The agency said its “tailpipe” rules for vehicles, triggered permit requirements for stationary sources.

The Clean Air Act permits originally applied to traditional pollutants and not greenhouse gases, like carbon dioxide, which everyone and nearly every building emits. The EPA was forced to tailor the rule to phase in large emitters of carbon dioxide.

The energy industry wants the court to eliminate the greenhouse gas permitting requirement altogether, while some simply want the courts to reduce the number of facilities that need such permits to operate.

“The Clean Air Act clearly only requires preconstruction permits for six specific emissions that impact national air quality—not greenhouse gases,” said Harry Ng, vice president and general counsel of the American Petroleum Institute. “That kind of overreach can have enormous implications on US competitiveness and the prices that consumers pay for fuel and manufactured goods.”

The American Chemistry Council petitioned the court to reduce the number of facilities that would need greenhouse gas permits, arguing that their plan would “still cover 83 percent of the national greenhouse gas emissions that would otherwise be covered.”

Will the Supreme Court really thwart Obama?

Environmental groups have downplayed the Supreme Court’s decision to review Obama’s climate agenda.

“The court rejected pleas by big polluters and a small group of states to review the EPA’s authority to limit greenhouse gas emissions from vehicles and other sources when they endanger public health or welfare,” said David Doniger, director of policy for the Natural Resources Defense Council’s climate and clean air program.

The NRDC and other environmentalists argue that the EPA’s authority to regulate greenhouse gases from vehicles provide the proper legal route for the agency to regulate emissions from power plants that use carbon-heavy fuels, like coal.

“When it determines that carbon pollution endangers our health and our climate, the EPA has both the authority and responsibility to set standards to limit that pollution,” Doniger added.

The EPA’s challengers have some reasons to be optimistic, as the are ostensibly five conservative court justices who could oppose administration’s agenda. Furthermore, the fact that the court took up the case could be a signal from the five conservative justices that they’re “not going to let major authority go unless congress says so” the conservative lawyer told TheDCNF.

“One can only speculate whether the Supreme Court granted cert to cut off further indirect challenges to its decision that greenhouse gases are air pollutants and to allow the EPA regulatory program that grew from that decision to proceed; or whether there is an administrative problems it wishes to fix or a point about allegedly excessive regulation is wishes to make,” said Kenneth Reich, a Boston-based environmental lawyer.

Some believe that the court may simply tweak the regulatory formula used by the EPA while leaving its overall authority to regulate greenhouse gases intact.

“Justices, overall, have sided with the environmentalist when it comes to the Clean Air Act,” reports Forbes. “But they have also ruled, generally, in favor of business interests. As such, they may tweak the regulatory formulas by which carbon releases are measured but the jurists will leave its core fundamentals intact.”

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