Marginal Victory Against EPA Overreach, But War on Affordable Energy Continues

Marginal Victory Against EPA Overreach, But War on Affordable Energy Continues

June 23, 2014

Today the Supreme Court handed down a decision regarding the EPA’s recent efforts to limit the emissions of greenhouse gases (GHGs). The ruling essentially bars the Enviromental Protection Agency (EPA) from unilaterally rewriting federal law to make its climate change related regulations more workable for the agency.
GHG emissions regulation is particularly controversial as GHGs are not included in the original six criteria pollutants of the Clean Air Act (CAA), the law which established much of the EPA’s authority to regulate air emissions. However, in a 2007 decision, the Supreme Court ruled that the EPA could begin regulating GHGs should they find them to present a clear and present danger to public health. In 2009, under the new Obama administration, the EPA did just that, issuing an endangerment finding that would clear the way for the new president's climate agenda.

Subsequently, the EPA promulgated regulations that would require major stationary emitters of GHGs, such as large factories, refineries, and power plants, to obtain PSD and Title V permits, which are pre-construction and operating permits respectively. However, the statutory threshold for requiring these permits is so low that tens of thousands of facilities throughout the United States, such as schools and churches, would be required to obtain them, creating a regulatory burden so vast that even the notoriously heavy-handed EPA thought it to be too overwhelming to administer. Therefore the EPA unilaterally raised the threshold several-fold, from just a few hundred of tons of emissions annually to hundreds-of-thousands of tons annually. The EPA deemed this the “tailoring” rule, as they sought to focus the impact of the new GHG permitting requirements on only the largest emitters. 

The Supreme Court, in a 5-4 ruling, found this to be an egregious overreach on the part of the EPA with respect to the power they have been delegated by Congress. The court ruled that the EPA’s authority to regulate GHGs does not “compel” them to do so. Further, the CAA’s thresholds, set by Congress, are “unambiguous” and not subject to change at the discretion of the EPA. 

In plain terms, the EPA does not have the authority to rewrite law to make their GHG regulations work, partly because they are not forced to regulate them in the first place. 

This is a victory for the American people in the sense that it reminds the EPA that law is made by Congress and the Courts, not unelected bureaucrats. That being said, the Supreme Court only took a narrow look at a single rule in what is a broad and multi-faceted attack on affordable energy in the United States. For example, the EPA will still be able to move ahead with the Clean Power Plan regulation, which forces states to reduce aggregate emissions of GHGs by shuttering dozens of coal-fired power plants across the country, taking jobs, businesses, and affordable energy with them. A more detailed explanation of the Clean Power Plan's negative impacts on the energy sector and broader economy can be found here.

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