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Supreme Court, with limits, lets EPA curb power-plant gases

“EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said in summarizing the decision from the bench.AFP/Getty Images/File

WASHINGTON — The Supreme Court on Monday handed President Barack Obama’s Environmental Protection Agency a victory in its efforts to regulate greenhouse gas emissions from stationary sources like power plants.

“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.”

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 5-4 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.

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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 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 U.S. 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, with the U.S. Chamber of Commerce calling them “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency.”

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.”

Among the cases decided Monday was Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146.


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