Climate Change Goes Back to Court

This morning, the Supreme Court granted certiorari in Utility Air Regulatory Group v. EPA concerning the Environmental Protection Agency’s regulation of greenhouse gases under the Clean Air Act. This is quite significant. Although the grant is limited, it focuses on one of the most important legal questions raised by this litigation, and puts some of the EPA’s regulation of greenhouse gas emissions from stationary sources in play.

Harvard’s Richard Lazarus comments:

The Court’s jurisdictional ruling is significant in terms of both what the Court granted and did not grant. The regulations the Court has agreed to review represent the Obama Administration’s first major rulemaking to address the emissions of greenhouse gases from major stationary sources across the country. At the same time, the Court declined to review EPA’s determination that greenhouse gases from new motor vehicles endanger public health and welfare and therefore has left intact the government’s current regulation of motor vehicles emissions to address climate change.

I largely agree, but would go farther in certain respects.

Here’s some background (see also my prior posts here and here). Various states, industry groups, and activist organizations had filed cert petitions – nine in total – and others filed amicus briefs (including yours truly) urging the Court to take this case. The Court was asked to consider many different questions, but only agreed to consider one of its own devising. Specifically, the Court granted six of the nine petitions and agreed to consider the following question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” In other words, the Court wants to know whether the EPA was required to apply Section 165 and Title V of the Act to greenhouse gases once it regulated GHGs from motor vehicles. If not, the EPA need not have rewritten these portions of the Act to avoid the “absurd results” of applying these provisions to carbon dioxide.

In my view, the grant is welcome, despite the limitations. Many of the questions for which industry sought review, such as whether the EPA properly considered the relevant scientific research or set permissible standards for vehicular emissions under Section 202 of the Clean Air Act, were not cert worthy. The issue embodied in the Court’s reformulated question presented, on the other hand, most definitely is. While I would have liked the Court to reconsider Massachusetts v. EPA, particularly given that decisions adoption of faulty premises about how the Clean Air Act works, such a grant would have been a heavy lift. The Court does not lightly reconsider its own statutory interpretations. This is still a welcome grant. (That’s my view, however, as I suspect Professor Lazarus disagrees.)

So the Court will not reconsider Mass v. EPA in this case, but the question presented will force the Court to confront the consequences the Mass decision. In particular, this case will force the Court to reconsider the assumption made by Justice Stevens in Mass v. EPA that application of the Clean Air Act to GHGs would not produce absurd results. As we’ve since learned, applying the CAA to GHGs does produce such results, particularly if the regulation of GHGs under Section 202 requires regulation of GHGs under the Clean Air Act’s Title V and PSD provisions. These portions of the Act expressly require the EPA (and state permitting authorities) to regulate more facilities than it could ever hope to have the resources to regulate. The EPA has used this fact to justify rewriting the Act in its regulations, and so the Court’s grant presents the opportunity to question whether the EPA should have at least considered an alternative construction of the Act. In other words, the Court now has the opportunity to force the EPA (and the D.C. Circuit) to adopt an interpretation of the CAA that vindicates the Court’s interpretation in Mass v. EPA by avoiding the absurd results EPA’s approach has generated. We’ll see whether the Court actually takes that opportunity.

A final note. The D.C. Circuit rested portions of its decision below on the conclusion that industry petitioners lacked standing to pursue certain claims against the Timing and Tailoring rules limiting the application of Title V and the PSD provisions to stationary sources. It will be interesting to see whether the standing question is handled in the merits briefing. Stay tuned.

UPDATE: Here are additional perspectives from UCLA’s Ann Carlson at LegalPlanet and RFF’s Nathan Richardson.

Still more from Brad Plumer.  And here’s an interesting catch: Juliet Eilprin reports Justice Alito recused himself from the decision on whether to grant these petitions.  That’s particularly interesting given his concurrence in American Electric Power v. Connecticut suggesting that he had some doubts about Massachusetts v. EPA. CORRECTION: Justice Alito did not recuse.