Justices, with limits, let EPA curb power-plant gases

WASHINGTON — The Supreme Court on Monday handed President Obama’s Environmental Protection Agency a victory in its efforts to regulate greenhouse gas emissions from such stationary sources as power plants, even as it criticized what it called the agency’s overreaching.

“EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said in summarizing the decision from the bench. “It sought to regulate sources 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.”

Scalia said the agency was free to do so as long as the sources in question “would need permits based on their emissions of more conventional pollutants.”


That part of the decision, which effectively sustained regulation of nearly all the sources the agency had sought to regulate, was decided by a 7-to-2 vote. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan joined that part of the decision.

Get Ground Game in your inbox:
Daily updates and analysis on national politics from James Pindell.
Thank you for signing up! Sign up for more newsletters here

The agency expressed satisfaction with the ruling.

“The Supreme Court’s decision is a win for our efforts to reduce carbon pollution because it allows EPA, states, and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources,” the agency said in a statement.

Another part of the decision rejected, in harsh terms, the agency’s primary rationale for the regulations. The agency had contended it would interpret the Clean Air Act to require regulation of far fewer stationary sources of pollution than the law seemed to require.

“An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms,” Scalia wrote. Roberts, Kennedy, and justices Clarence Thomas and Samuel A. Alito Jr. joined that part of the decision, which was decided by a 5-4 vote.


The National Federation of Independent Business welcomed what it said was the Supreme Court’s refusal to allow the agency to rewrite the statute.

“If this rule had been allowed to stand, small-business owners such as ranchers, farmers, manufacturers, restaurant owners, and others would have seen more paperwork, more oversight and fines,” the group said in a statement.

While the decision did reject the agency’s primary rationale for the regulations, it did not seem to directly affect the administration’s recently announced plans to cut carbon pollution under a different set of regulations.

The regulations challenged in Monday’s decision built on the Supreme Court’s 5-to-4 decision in 2007 in Massachusetts v. Environmental Protection Agency, which required the agency to regulate emissions of greenhouse gases from new motor vehicles if it found that they endangered public health or welfare.

The agency made such a finding, saying that “elevated concentrations of greenhouse gases in the atmosphere” pose a danger to “current and future generations” and it set limits on emissions from new vehicles.


The agency said its regulation of tailpipe emissions also required regulation of emissions from stationary sources under two permitting programs. While acknowledging that the relevant provisions of the Clean Air Act fit such emissions imperfectly, the agency said the law nonetheless compelled it to require permits.

‘The Supreme Court’s decision is a win for our efforts to reduce carbon pollution.’

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 such as 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 US Court of Appeals for the District of Columbia Circuit.

A second program would reach 6 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 agency said Congress could not have intended such an “absurd result.” Its solution was to raise the statutory emissions threshold to 75,000 to 100,000 tons per year, thus reaching far fewer facilities. This was, it said, a permissible exercise of discretion and one subject to tightening over time.

States and industry groups challenged the regulations on many grounds.

The Supreme Court limited the issue it would consider to whether the agency “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.”

The case decided Monday was Utility Air Regulatory Group v. Environmental Protection Agency.