Obama’s EPA is using the Clean Air Act to justify regulating emissions from power plants. Can they even do that?

posted at 2:41 pm on February 25, 2014 by Erika Johnsen

Back in 2007, the Supreme Court determined that, under the Clean Air Act, the Environmental Protection Agency not only has the authority to regulate but indeed should regulate greenhouse gas emissions from new motor vehicles — but fast-forward to President Obama’s climate-change agenda and his administration’s strategy to use the EPA’s Clean-Air auspices to regulate stationary sources (i.e., coal-fired power plants), and the EPA is back at the Supreme Court. I’ll point you to Carrie Severino’s review at NRO for a more thorough rundown, but the justices heard the arguments on Monday from the six combined cases, with the utility industry, the Chamber of Commerce, and thirteen states arguing that the EPA has once again overzealously outstripped its own authority, while fifteen other states and environmentalists groups argued that the EPA is doing exactly what it should be doing. Via WaPo:

The stakes are described in apocalyptic terms. One conservative coalition warns that the Obama administration is attempting “perhaps the most audacious seizure of pure legislative power” since President Harry S. Truman tried to commandeer the steel mills during the Korean War. Environmentalists say the objecting states and business groups are trying to undo decades of EPA practice.

But unless the court decides to revisit its 2007 decision that says the EPA has the power to regulate greenhouse gases — and there’s no evidence the justices are willing to reopen that debate — the upcoming ruling may not live up to the hype.

Utility Air Regulatory Group v. EPA , which deals with “stationary sources” such as power plants and factories, could end up being more about PR than CO2.

Both sides agree that the outcome will not affect the agency’s rules governing emissions from motor vehicles or plans underway to control new power plants. And a victory could be seen as an affirmation of Obama’s authority to move boldly on environmental regulations in the midst of a gridlocked Congress.

A defeat, however, would look like a repudiation of the Obama administration’s power-grabbing via heavy regulatory fiat, rather than working with Congress to put together actual legislation. As ever, the pivotal vote will likely come from Justice Kennedy; as Lyle Denniston mentioned at SCOTUSBlog yesterday, Kennedy expressed some skepticism, but didn’t say anything amounting to outright disapproval of the EPA’s actions, either:

As is so often the case when the Court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt.   Although he seemed troubled that Solicitor General Donald B. Verrilli, Jr., could call up no prior ruling to support the policy choice the EPA had made on greenhouse gases by industrial plants, Kennedy left the impression that it might not matter. …

“Reading the briefs,” he commented to Verrilli, acting as the EPA’s lawyer, “I cannot find a single precedent that supports your position.”  It appears that there just isn’t one to be had.

That, then, raised the question: how much would Kennedy be willing to trust the EPA to have done its best to follow Congress’s lead without stretching the Clean Air Act out of shape, as the EPA’s challengers have insisted that it has done?  He made no comments suggesting that he accepted industry’s complaint of an EPA power grab.

In a nutshell, the Obama administration has once again taken an overtly aggressive stance on interpreting, and effectively rewriting/expanding, its powers for the sake of their grandiose climate agenda, basically because they feel like it — which, funnily enough, seems to be the guiding principle of the Obama administration in general (ahem, ObamaCare). We’ll have to wait until around June for the decision.



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As ever, the pivotal vote will likely come from Justice Kennedy;

All the Admin has to do is argue anti-gay bigotry and he’ll go along with it.

nobar on February 25, 2014 at 2:44 PM

Don’t ask Boehner… he’s busy wolfing down hors d’oeuvre over at the Whitey House.

viking01 on February 25, 2014 at 2:45 PM

Why is it that this country seems filled with people
asking this particular question usually phrased as
“Can they do that? every damn day of every year now..

These questions are usually accompanied by a dumb look
on the face of whoever is asking it…

How’s Bout we start doing something about it, shall we??

ToddPA on February 25, 2014 at 2:45 PM

The law is what the executive branch says it is! Period.

Now excuse me while I go vomit in disgust over all three branches of our federal government.

xNavigator on February 25, 2014 at 2:49 PM

Why do we still have an EPA?

redguy on February 25, 2014 at 2:49 PM

Roberts will write the decision confirming Obama’s Kingship!!

Deano1952 on February 25, 2014 at 2:52 PM

Can they even do that?

He’s President. He can do whatever he wants.

rrpjr on February 25, 2014 at 2:53 PM

SCOTUS not playing with the EPA

“I know litigants hate this question,” Justice Sonia Sotomayor told Verrilli. She asked which of two rationales he would prefer “if you were going to lose.”

“Reading your brief,” Kennedy told the administration’s lawyer, “I couldn’t find a single precedent that strongly supports your position. . . . What are the cases you want me to cite if I write the opinion to sustain your position?”

Elena Kagan, an Obama appointee, said the EPA’s solution “seems to give it complete discretion to do whatever it wants, whenever it wants” — which she found “problematic.”

jake-the-goose on February 25, 2014 at 2:54 PM

Back in 2007, the Supreme Court determined that, under the Clean Air Act, the Environmental Protection Agency not only has the authority to regulate but indeed should regulate greenhouse gas emissions from new motor vehicles

Which was a totally insane, anti-scientific finding by the courts, which have no business wading in on matters they obviously know less than nothing about. Global warming – even in the fantastical pea-brains of the leftist climate scientologists – has nothing to do with “clean air”. Since the most impactful and largest “greenhouse gas” (LOL) is water vapor, the courts made a mockery of themselves and the Rule of Law, in general.

But unless the court decides to revisit its 2007 decision that says the EPA has the power to regulate greenhouse gases — and there’s no evidence the justices are willing to reopen that debate

Sure … it’s not as if the fraud behind the global warming cabal has been fully exposed by revealed emails or anything … The same idiots in East Anglia who brought us Piltdown Man are major instigators behind the global warming fraud. Big shocker, there.

And behind all this we have barky pushing this pseudo-science into economy-killing, anti-productive policy, all on his whim. Pretty amazing that a guy with an IQ of 84 and the mathematical sophistication of a slow 8th grader is running the technological framework for a nation (well outside of hsi Constitutional powers, even if he were actually eligible for the job that he’s clearly unqualified for in every way) and people still take him and his junta seriously instead of just laughing them out of the room and jailing the bunch of criminals.

*shakes head*

ThePrimordialOrderedPair on February 25, 2014 at 2:55 PM

Elena Kagan, an Obama appointee, said the EPA’s solution “seems to give it complete discretion to do whatever it wants, whenever it wants” — which she found “problematic.”

jake-the-goose on February 25, 2014 at 2:54 PM

Wow. Kagan said something ethical? On purpose?

viking01 on February 25, 2014 at 2:58 PM

Kennedy is simply looking for legal permission to do what the administration wants. Roberts will suck his thumb and go with the sycophantic flow. The camel’s head is under the tent and seeking to plump the hump in as well. Scotus has given carte blanche to the Executive to torture whatever law it wants, for its own ideological purpose. Holder is the perfect Quisling for this regime. Hold on to yer wallets and save yer copy of the Constitution for fictional reading – it’s gwan be a bumpy ride!

vnvet on February 25, 2014 at 2:58 PM

Roberts will write the decision confirming Obama’s Kingship!!

Deano1952 on February 25, 2014 at 2:52 PM

“I crown thee Boss Dogg the First.”

——- Smirking Benedict Roberts the Robed Betrayer

viking01 on February 25, 2014 at 3:00 PM

This is actually a pretty consequential case. EPA is trying to shoehorn a regulation of stationary CO2 sources into a law that (a) was clearly intended to cover mobile sources of air pollution, and (b) clearly says the regulation MUST cover all emissions over a certain threshold. Because the threshold in the law would be absurdly low if applied to stationary sources, it would require regulation of CO2 emissions from homes and small businesses. EPA doesn’t want to do that, so it is simply arbitrarily raising the emissions threshold set by Congress so that the EPA rule miraculously only covers coal-fired power plants and very large factories that produce their own power.

If EPA can get away with this, then any agency in the future can just rewrite whatever numbers or limits it deems are absurd or unworkable or just inconvenient, without going to Congress for authorization. For example, FHA could decide to double its loan limits without asking Congress. The FDIC could double its deposit insurance premiums.

rockmom on February 25, 2014 at 3:06 PM

Can they even do that?

The whole idea is, of course, to use the EPA in a wholly illegal way. By the time their illicit actions are adjudicated, years have passed, and the damage is already done. Bingo.

Never forget: Obama the lawyer knows how to use the slow churn of this galactic legal system to his advantage.

And my utility bills keep climbing…ASTRONOMICALLY….(as Obama-ally promised).

marybel on February 25, 2014 at 3:13 PM

Can they even do that?

…who’s going to stop them?
….R E P U B L I C A N S ?

KOOLAID2 on February 25, 2014 at 3:16 PM

It’s a TAX.
Game, Set, Match.

King Coal is DEAD, so sayeth King Putt.

Missilengr on February 25, 2014 at 3:17 PM

How’s Bout we start doing something about it, shall we??

ToddPA on February 25, 2014 at 2:45 PM

All we need is one little spark and the largest sleeping army in the world can take care of business…

Doomsday on February 25, 2014 at 3:28 PM

This is actually a pretty consequential case. EPA is trying to shoehorn a regulation of stationary CO2 sources into a law that (a) was clearly intended to cover mobile sources of air pollution, and (b) clearly says the regulation MUST cover all emissions over a certain threshold.

rockmom on February 25, 2014 at 3:06 PM

There is no “law” that allows the EPA to regulate mobile or stationary sources of CO2. Congress has never enacted any law allowing or empowering the EPA to regulate carbon dioxide, which is not an “air pollutant”. The Clean Air Act (and its Amendments passed in 1990) list chemical compounds that are recognized as “criteria pollutants” subject to PSD regulations, and “hazardous air pollutants”, and carbon dioxide is not on either list.

In 2007, the Supreme Court ruled that carbon dioxide is a “dangerous” contaminant, and that the EPA “may” regulate its emissions. The Bush Administration chose not to write any regulations, but after the “cap and trade” bill failed to pass Congress even with a filibuster-proof Senate majority, the EPA under Obama wrote “rules” to force power plants emitting more than 75,000 tons/year of carbon dioxide to install “Best Available Control Technology”. This is poorly defined, since there is no “available” technology to remove carbon dioxide from flue gases at this scale.

This IS a very low threshold for a power plant, since even a clean-burning gas-fired power plant emits this much CO2 if it generates about 30 Megawatts, and most commercial gas turbines generate 250 MW or more. The net effect has been to stop construction of ALL power plants (gas-fired as well as coal-fired), except for small gas/steam-reforming units producing a few megawatts, which some schools and large department stores have installed to become independent of the energy grid. Small power plants are less efficient than larger plants, and actually emit more CO2 per megawatt generated. If these regulations are not rescinded soon, power plants needing a permit renewal may shut down, resulting in a shortage of electrical power and rolling blackouts.

If EPA wants to regulate CO2 emissions, the thresholds should be on a per-megawatt basis, not a per-year basis, so that cleaner and more efficient plants are favored over dirtier plants.

Number of people poisoned by carbon dioxide throughout history: Zero.

Number of plants nourished by carbon dioxide: Countless–every tree, bush, blade of grass on Earth, and all the phytoplankton in the sea. Directly or indirectly, all life on Earth has been nourished by carbon dioxide.

Such a “dangerous” air pollutant, that feeds the world!

Steve Z on February 25, 2014 at 3:35 PM

The original statute authorizing the EPA required cost considerations, but no federal judge has e er allowed that limitation on EPA power.

jhnone on February 25, 2014 at 3:36 PM

As much as I detest what the administration is doing, it starts with a lazy Congress. Lazy in the sense that instead of thinking through the ramifications of their legislative actions, they simply empower the executive branch or independent agencies to “promulgate” regulations. This Administration, to its shame, has pushed that up several notches and it will now take years of litigation to figure out what actions were a legitimate exercise of government authority.

What needs to happen is for Congress to reign back in some of these expansive laws instead of waiting for the Court’s to do so. (Of course, that will not realistically happen until there is a new administration.)

Thanks for listening,
EB

EdmundBurke247 on February 25, 2014 at 3:38 PM

Chamber of Commerce against Obama? Can they both lose?

besser tot als rot on February 25, 2014 at 3:50 PM

As much as I detest what the administration is doing, it starts with a lazy Congress. Lazy in the sense that instead of thinking through the ramifications of their legislative actions, they simply empower the executive branch or independent agencies to “promulgate” regulations. This Administration, to its shame, has pushed that up several notches and it will now take years of litigation to figure out what actions were a legitimate exercise of government authority.

What needs to happen is for Congress to reign back in some of these expansive laws instead of waiting for the Court’s to do so. (Of course, that will not realistically happen until there is a new administration.)

Thanks for listening,
EB

EdmundBurke247 on February 25, 2014 at 3:38 PM

I tend to forgive the Congress of 1973 for not envisioning that some nutbags would decide 30 years later that carbon dioxide is an air pollutant. In 1973, TIME magazine was screaming about global cooling, for goodness’ sake.

The Bush EPA thought it was well within the statute to NOT define CO2 as an air pollutant. The environuts from Massachusetts filed a petition for a rulemaking, and then used an obscure section of administrative law to sue the Bush EPA over its failure to respond to the petition. That’s how this whole mess started.

This new rule relies on a gross misinterpretation of the Massachusetts decision, not the statute itself. The EPA simply grants itself the authority to issue a “tailoring rule” in order to make the results of the first rule less absurd than the clear reading of the statute requires.

It’s really hard for any Congress to anticipate such absurdities or breathtaking lawlessness by a future President.

rockmom on February 25, 2014 at 3:58 PM

This is how the middle class is squeezed into poverty and made into dependents of the state. It’s disgusting.

Charlemagne on February 25, 2014 at 4:04 PM

Roberts will probably “surprise” everyone by deciding it’s a tax, or something.

Seriously though, I don’t see how we ever get the country back when we’re at the point where one man, in this case Justice Kennedy has the authority to rewrite the constitution at will. I can’t even imagine that any of the founders had anything like this in mind.

Paperclips on February 25, 2014 at 4:04 PM

I can’t even imagine that any of the founders had anything like this in mind.

Paperclips on February 25, 2014 at 4:04 PM

Agreed. They probably figured checks and balances wouldn’t be trumped by total corruption in all three branches of government.

They did, however, understand human nature so that if our military can somehow answer the Constitution instead of the politicians the Republic may still stand a slight chance.

viking01 on February 25, 2014 at 4:11 PM

Because who needs clean air? Besides, the Corporate Masters live too far from those smoke stacks to be affected, so what’s the fuss?

Constantine on February 25, 2014 at 4:12 PM

How long before the Supreme Court rules that presidential term limits are not a properly ratified part of the Constitution and, therefore, Obama can run for a third term?

Shump on February 25, 2014 at 4:20 PM

Marge: Homer, just where were you planning to keep this horse?

Homer: I got it all figured out. By day, it’ll roam free around the neighborhood, and at night, it’ll nestle snugly between the cars in our garage.

Marge: That’s illegal!

Homer: That’s for the courts to decide!

Socratease on February 25, 2014 at 4:21 PM

Because who needs clean air? Besides, the Corporate Masters live too far from those smoke stacks to be affected, so what’s the fuss?

Constantine on February 25, 2014 at 4:12 PM

are you really that retarded or is there a sarc tag missing?

dmacleo on February 25, 2014 at 4:23 PM

Because who needs clean air? Besides, the Corporate Masters live too far from those smoke stacks to be affected, so what’s the fuss?

Constantine on February 25, 2014 at 4:12 PM

Let’s just cut your electricity first, shall we?

trigon on February 25, 2014 at 4:26 PM

jake-the-goose on February 25, 2014 at 2:54 PM

The lawgivers in black like to work on their poker faces in oral arguments. (See, e.g., Ginsburg’s oral argument statement on the individual mandate penalty.)

blammm on February 25, 2014 at 4:26 PM

Now we have one UNELECTED government entity looking for approval from another unelected government entity.

This is the result of a terribly flawed supreme court rulings of the 1930′s.

The outcome will be the result of the standard litmus test applied by senators during supreme confirmations of supreme court justices. EVERY justice is asked to affirm their belief in Wickard vs Filburn. NO SITTING justice has failed to answer in the AFFIRMATIVE to this question. This is in fact the BIGGEST decision that affirms UNLIMITED power for the federal government!

Look for this supreme court to affirm an unfettered expansion of the regulatory state.

Freddy on February 25, 2014 at 4:34 PM

Let’s just cut your electricity first, shall we?

trigon on February 25, 2014 at 4:26 PM

Because the technology doesn’t exist to reduce pollutants. We must choose between power or clean air. Yep, that’s just science.

Constantine on February 25, 2014 at 4:35 PM

The Bush EPA thought it was well within the statute to NOT define CO2 as an air pollutant. The environuts from Massachusetts filed a petition for a rulemaking, and then used an obscure section of administrative law to sue the Bush EPA over its failure to respond to the petition. That’s how this whole mess started.

This new rule relies on a gross misinterpretation of the Massachusetts decision, not the statute itself. The EPA simply grants itself the authority to issue a “tailoring rule” in order to make the results of the first rule less absurd than the clear reading of the statute requires.

It’s really hard for any Congress to anticipate such absurdities or breathtaking lawlessness by a future President.

rockmom on February 25, 2014 at 3:58 PM

I must politely disagree. When you give an agency the power TO NOT define something, you also give them the power TO define something. I do agree that no one could foresee that agencies would blindly ignoring existing law and public opinion and striking out on their own, but Congress did cede them that power. If Congress had not done so in the first place, we would not be in this position.

Put another way, the Congressional failure to read PPACA (Obamacare) before passing it was certainly not their first instances of neglect.

EB

EdmundBurke247 on February 25, 2014 at 4:45 PM

a lazy Congress

For most of them, feeding at the “Lobbyist trough” is a full time job.

RADIOONE on February 25, 2014 at 4:47 PM

SCOTUS screwed the American public when it allowed EPA to regulate automotive emissions.

Black robes of BULL#%IHT

TX-96 on February 25, 2014 at 4:47 PM

Wow. Kagan said something ethical? On purpose?

viking01 on February 25, 2014 at 2:58 PM

What’s said and what’s done are two different things. We’ll see.

Mimzey on February 25, 2014 at 4:59 PM

EPA’s own action to change the threshold shows that it know very well that the law’s intent was to apply to something other than what they have chosen to apply it to. Congressional intent in this case should be clear enough to allow the Court to rule this out of bounds if they really want to. In the prior case it could be argued that while CO2 was not specified, the laws purpose was not to restrict EPA from addressing air pollants. So while it might be argued that congressional intent was ambiguous in the previous case, it really cannot be argued sensibly here. If the court buys the laws applicability here, it should still impose the orginal thresholds. If they do not do that, they should rule does not apply to these sources.

KW64 on February 25, 2014 at 6:06 PM

Because who needs clean air? Besides, the Corporate Masters live too far from those smoke stacks to be affected, so what’s the fuss?

Constantine on February 25, 2014 at 4:12 PM

Clean air has nothing to do with CO2. It is low information morons like you that are the problem more even than the jackasses you vote into power.

May your koolaid be laced with lead you Phuckwad

Reality Checker on February 25, 2014 at 6:15 PM