Supreme Court upholds EPA’s cross-state air pollution authority
posted at 6:01 pm on April 29, 2014 by Erika Johnsen
Over the past few years, the green lobby has put a lot of its collective energy into making a gigantic fuss over the Keystone XL pipeline and pushing President Obama to make climate change more of a priority — but in the grand scheme of things, the proposed pipeline is really just a symbolic battle about refusing to enable fossil-fuel development by building the requisite infrastructure (because, these eco-radicals hope and pray, we’ll start leaving more of our resources in the ground in favor of heavily subsidizing renewables and forcing behavioral changes). As the NYT rather aptly pointed out last week, the carbon emissions that Canada will unleash in developing their old sands aren’t even a drop in the bucket compared to the impact that the Obama administration’s many regulations can/will have:
Experts say that Mr. Obama’s eventual decision on the pipeline will have a marginal impact on global warming emissions, while those dull-sounding E.P.A. rules and treaty talks will determine his enviromental legacy.
Consider the numbers: In 2011, the most recent year for which comprehensive international data is available, the global economy emitted 32.6 billion metric tons of carbon pollution. The United States was responsible for 5.5 billion tons of that (coming in second to China, which emitted 8.7 billion tons). Within the United States, electric power plants produced 2.8 billion tons of those greenhouse gases, while vehicle tailpipe emissions from burning gasoline produced 1.9 billion tons.
By comparison, the oil that would move through the Keystone pipeline would add 18.7 million metric tons of carbon to the atmosphere annually, the E.P.A. estimated. In other words, the carbon emissions produced by oil that would be moved in the Keystone pipeline would amount to less than 1 percent of United States greenhouse gas emissions, and an infinitesimal slice of the global total.
Within that context, “the Keystone pipeline is a rounding error,” said Kevin Book, the founder of ClearView Energy Partners, an energy analysis firm.
Which means that the Obama administration’s recent regulations on new power plants in conjunction with forthcoming regulations on existing power plants (read: squashing coal out of the picture) are the real power players in Obama’s climate-change agenda, and the Environmental Protection Agency was further enabled in carrying out that mission through the Clean Air Act with a Supreme Court decision released today. In 2012, a lower court ruled that the EPA was taking too much leeway with the “good neighbor” provision of the act in determining how much upwind emitters should be required to reduce their emissions to compensate for the pollution that drifts to downwind states (namely, via the EPA appointing itself with the unwritten authority to selectively consider several factors including what it would cost the individual state and how much the individual state has already done to cut pollution, rather than just considering how much the state is actually emitting). SCOTUS, however, decided that the EPA’s broader interpretation of the rule does indeed make practical sense, via Reuters:
By a 6-2 vote, the court said the U.S. Environmental Protection Agency acted reasonably in requiring 28 states to reduce emissions from coal-fired power plants of sulfur dioxide and nitrogen oxides, which can lead to soot and smog.
Writing for the majority, Justice Ruth Bader Ginsburg called the EPA rule a cost-effective way to allocate responsibility for emission reductions among so-called upwind states, and that the EPA need not consider each state’s proportionate responsibility for the emissions in question.
She also called the rule a “permissible, workable, and equitable interpretation” of the “good neighbor” provision of the federal Clean Air Act.
This provision limits cross-border emissions that make it harder for downwind states to comply with federal air quality standards, or national ambient air quality standards (NAAQS).
“The Good Neighbor Provision requires EPA to seek downwind attainment of NAAQS notwithstanding the uncertainties,” Ginsburg wrote. “Required to balance the possibilities of under-control and over-control, EPA must have leeway in fulfilling its statutory mandate.”
Alito recused, while Scalia and Thomas were the two dissenters, emphases mine:
Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress. With the statute involved in the present cases, however, Congress did it right. It specified quite precisely the responsibility of an upwind State under the Good Neighbor Provision: to eliminate those amounts of pollutants that it contributes to downwind problem areas. But the Environmental Protection Agency was unsatisfied with this system. Agency personnel, perhaps correctly, thought it more efficient to require reductions not in proportion to the amounts of pollutants for which each upwind State is responsible, but on the basis of how cost-effectively each can decrease emissions.
Today, the majority approves that undemocratic revision of the Clean Air Act. The Agency came forward with a textual justification for its action, relying on a farfetched meaning of the word “significantly” in the statutory text. That justification is so feeble that today’s majority does not even recite it, much less defend it. The majority reaches its result (“Look Ma, no hands!”) without benefit of text, claiming to have identified a remarkable “gap” in the statute, which it proceeds to fill (contrary to the plain logic of the statute) with cost-benefit analysis—and then, with no pretended textual justification at all, simply extends cost-benefit analysis beyond the scope of the alleged gap. …
The statute addresses solely the environmental consequences of emissions, not the facility of reducing them; and it requires States to shoulder burdens in proportion to the size of their contributions, not in proportion to the ease of bearing them. EPA’s utterly fanciful “from each according to its ability” construction sacrifices democratically adopted text to bureaucratically favored policy.
Perhaps the individually-evaluated approach for which the EPA argued does make the process more workable for its ostensible emission-reducing purposes, but I’d be a little more inclined to give the agency the benefit of the doubt if it hadn’t already established such a brazen habit of expanding its own power at every possible turn.