Contrary to headlines such as Fox News’ “Supreme Court limits EPA global warming rules,” the Supreme Court today ruled in favor of broad authority for the Environmental Protection Agency.
In an important opinion, the court ensured the EPA will continue to use its authority under the Clean Air Act to regulate “global warming,” and industry will have to sue in federal court to stop the EPA’s most egregious abuses.
The Clean Air Act authorizes the EPA to regulate greenhouse gases as an “air pollutant,” and the Supreme Court upheld this provision in a 2007 case. Since then, the EPA has begun to require permits for “major emitting facilities” of greenhouse gases. The problem is the text of the Clean Air Act sets the bar so low EPA could regulate almost any building in America, such as large apartment buildings or offices. Under different authority, the EPA even suggested regulating lawnmowers.
Because regulating every large building in America would be absurd, the EPA decided that it would set the bar higher. And today, the Supreme Court said that “rewriting” the law in this way is not something the EPA can do.
But the Supreme Court also upheld the second part of what the EPA was trying to do.
Some “major emitting facilities” emit something other than greenhouse gas—such as sulfur dioxide, for example. If they are swept up under a regulation governing these non-greenhouse gas pollutants, the EPA often will require them to take steps to control not only these pollutants, but greenhouse gas emissions as well. The EPA thus “bootstraps” regulating greenhouse gas emissions onto the regulation of other pollutants.
Today, the Supreme Court upheld EPA’s position on this issue, holding that “air pollutant” in one part of the law doesn’t necessarily have the same meaning as “air pollutant” in other parts of the law. This kind of textual confusion will lead to all further litigation.
This sort of uncertainty has real economic consequences. If you’re a business hoping to construct a factory and that factory emits something other than carbon dioxide, EPA might require you to install carbon dioxide controls, and it might decide to require you to do other things as well.
The meat-and-potatoes for the EPA is regulating greenhouse gases from electricity generation. The EPA is moving forward with regulations for new and existing power plants that effectively will prohibit the construction of new coal-fired generation plant and will force existing plants offline. The Supreme Court decision does not affect these regulations. But since a majority of our energy needs are met by affordable, reliable, carbon-emitting conventional fuels, regulation in this area could drive up energy bills significantly.
Heritage Foundation economists modeled the phasing out of coal, which is what the EPA’s climate regulations and other proposed and implemented regulations essentially would do, and found the EPA’s war on coal will cost a family of four more than $1,200 in income per year and destroy nearly 600,000 jobs.
Because many major countries have no serious plans to cut their emissions, any purported climate impact from these regulations will be negligible or non-existent.
Ultimately, the Clean Air Act is a statute, and Congress and the president can work together to amend the act to curb the EPA’s regulatory authority. Even though Congress did reject cap-and-trade plans, it also should prevent unelected officials from implementing the regulatory equivalen