February 24

Supreme Court seems divided over industry emissions

While liberals seem comfortable with the EPA's permitting program, conservatives indicate they’re skeptical of the agency’s authority.

By Mark Sherman
The Associated Press

WASHINGTON – The Supreme Court appeared divided on Monday over the sole Obama administration program already in place to limit power plant and factory emissions of gases blamed for global warming.

click image to enlarge

Smoke rises from the Colstrip Steam Electric Station, a coal-burning power plant in Colstrip, Mont. Colstrip is the kind of plant called on by President Barack Obama’s climate change plan to reduce carbon dioxide emissions.

2013 Associated Press File Photo

The justices took on a small, complicated piece of the politically charged issue of cutting greenhouse gas emissions in an extended argument that included references to Dunkin’ Donuts stores, football games and light bulbs. The examples were meant to illustrate the vast potential reach of the program, in its critics’ view, or its limited nature, as the administration argued.

The presence of Senate Republican Leader Mitch McConnell of Kentucky in the courtroom underscored the political stakes in President Barack Obama’s high-profile effort to deal with global warming – a policy Obama is pursuing after failing to persuade Congress to enact climate change legislation. McConnell is facing a tough re-election fight in which he refers often to the administration’s assault on the coal industry in Kentucky and elsewhere.

The court’s liberal justices seemed comfortable with the scope of an Environmental Protection Agency permitting program that applies to companies that want to expand facilities or build new ones that would increase overall pollution. Under the program, the companies must evaluate ways to reduce the carbon they release. Carbon dioxide is the chief greenhouse gas.

However, conservative members of the bench indicated they’re skeptical of the EPA’s authority, with Justice Anthony Kennedy as the probable decisive vote. Kennedy seemed most interested in making clear that EPA would retain the ability to combat climate change under earlier high court rulings, regardless of the outcome of this case.

Both sides acknowledged on Monday that the result would not impede EPA’s proposal of first-time national standards for new power plants or its regulations for existing plants expected to be proposed this summer. It will then move on to other large stationary sources such as factories.

The permitting program, though, is the first piece of EPA’s attempt to reduce carbon output from large sources. Justice Samuel Alito suggested that EPA simply rewrote a provision of the Clean Air Act to justify its permitting program and avoid sweeping in tens of thousands of businesses.

“In the entire history of federal regulation what is the best example you can give us of an agency’s doing something like that?” Alito asked Solicitor General Donald Verrilli Jr., defending the program for the administration.

Verrilli sought to explain the EPA’s actions as a way to deal with major sources of pollution, “not to gradually expand the permitting requirement until they’ve got all the Dunkin’ Donuts in America under it. That’s not what’s going on.” About 140 permits have been issued so far, Verrilli said.

But Peter Keisler, representing the American Chemistry Council among two dozen manufacturing and industry groups that want the court to throw out the rule, said that the administration’s description omits an astonishing level of detail discussed by EPA and local permitting authorities, including “whether more-efficient light bulbs should be used in a plant’s cafeteria.” EPA decided it wasn’t worth it, Keisler said.

One potentially narrow outcome would preserve the bulk of the program for facilities that already emit other pollutants that EPA regulates.

Verrilli urged the court to leave the permitting program in place. “This is an urgent problem. Every year that passes, the problem gets worse and the problem for future generations gets worse,” he said.

In 2012, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit concluded that the EPA was “unambiguously correct” in using existing federal law to address global warming.

Kennedy joined the court’s four liberal justices in the 2007 ruling in Massachusetts v. EPA that said the agency has the authority under the Clean Air Act to limit emissions of greenhouse gases from vehicles.

(Continued on page 2)

Were you interviewed for this story? If so, please fill out our accuracy form

Send question/comment to the editors




Further Discussion

Here at PressHerald.com we value our readers and are committed to growing our community by encouraging you to add to the discussion. To ensure conscientious dialogue we have implemented a strict no-bullying policy. To participate, you must follow our Terms of Use.

Questions about the article? Add them below and we’ll try to answer them or do a follow-up post as soon as we can. Technical problems? Email them to us with an exact description of the problem. Make sure to include:
  • Type of computer or mobile device your are using
  • Exact operating system and browser you are viewing the site on (TIP: You can easily determine your operating system here.)