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Supreme Court to Hear Challenge of Obama’s EPA

supreme-court-epa-rulingThe Supreme Court has agreed to hear a challenge to new clean air rules issued by the Environmental Protection Agency (EPA).  The question at stake is whether the EPA has the authority to regulate greenhouse gases emitted from stationary sources (such as power plants).  The various petitions the court has accepted for review have been consolidated into one petition, titled Utility Air Regulatory Group vs. Environmental Protection Agency.

The EPA has derived its regulatory authority from the Clean Air Act of 1970, as amended, which states in part, “Nothing … shall diminish the authority of the Administrator [of the EPA] … to establish for any air pollutant a national air quality standard …”  The Act goes on to allow the EPA to regulate “… pollutants which present, or may present … adverse environmental effects.”   At the time, the EPA declined to list carbon dioxide (CO2) as a regulated pollutant.

The EPA did not expand its list of hazardous air pollutants until 2007 when, in Massachusetts vs. Environmental Protection Agency, the Supreme Court ordered that the EPA must revisit its list of regulated pollutants, and that greenhouse gases (including CO2) should be included on that list.

In agreeing to hear the latest challenge, the Court refused to hear arguments on whether the EPA is empowered to regulate greenhouse gases.  Rather, the main point of contention is the EPA’s decision that, if CO2 pollution from motor vehicles is subject to regulation; CO2 emissions from stationary sources are also subject to the same regulation.

Basically, the Court is deciding whether the criteria used to determine that emissions from vehicles are a “pollutant” can also determine that emissions from a building are a “pollutant.”  The outcome will mainly pose an administrative directive for the EPA: will the agency need to create a set of criteria distinguishing between the sources of pollutants, or will all pollution sources be subject to the same criteria?

On the surface, this seems to be a ploy by dissenting industries to delay the implementation of new EPA regulations restricting greenhouse gas emissions.  While the Supreme Court, in turning away multiple petitions, agrees that the EPA has the power to regulate such polluters, the only question here is the procedure by which that regulation takes place.

Four of the current justices dissented in Massachusetts vs. EPA, suggesting the possibility that they would be willing to break precedent and decide against the EPA retaining broad regulatory power.  But accepting only this one challenge – as opposed to granting petitions regarding various other arguments – signals that such a break is unlikely.  The case is scheduled to be argued in February, 2014.

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