Texas lost once again on Monday in its legal battle to stop federal regulation of climate-disrupting pollution.
The Supreme Court upheld a requirement – challenged by Texas, business groups and other states – for emission-lowering construction permits at large new industrial facilities or existing plants where major modifications are planned.
The 7-2 ruling let stand an Obama administration regulation that applies to industrial facilities such as power plants, chemical plants and oil refineries that emit climate-warming carbon dioxide along with so-called “conventional” pollutants regulated under the Clean Air Act, such as nitrogen oxides and tiny airborne particles.
In a 5-4 ruling, the court agreed with Texas and other litigants that the Environmental Protection Agency had exceeded its authority by “tailoring” part of its permit rules so they would apply only to major industrial plants and not to the hugely greater number of smaller emission sources that would have been affected under a literal reading of the Clean Air Act.
The 5-4 decision on the EPA’s “tailoring rule” meant the agency could not require permits at facilities solely because they emit CO2 – only if they also release other regulated air pollutants.
However, Justice Antonin Scalia, the very conservative and generally pro-business jurist who was part of the court majority in the 7-2 ruling, said it meant the EPA got “almost everything it wanted in this case.” He added:
[The EPA] sought to regulate sources it said were responsible for 86 percent of all the greenhouse gases emitted from stationary [industry] sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.
The New York Times noted that the 7-2 ruling “effectively sustained regulation of nearly all the sources the agency had sought to regulate.”
Along with its legal fight against the EPA regulations, Texas – alone among the states – initially refused to implement the permit requirements for new and modified industrial facilities. Typically, the EPA delegates such permitting authority to the states.
In this instance, however, the EPA proceeded to issue permits for greenhouse emissions to large plants on its own once Texas refused. Urged by industry to do so, however, the Texas Legislature subsequently ordered state environmental officials to back down from their refusal to participate in the program. Those state officials are now preparing to begin issuing the climate-protection permits along with the others they routinely issue under federal authority.
Among other legal arguments, Texas officials have contended that the Clean Air Act can’t be used to regulate CO2 and other greenhouse gases, because they are not specifically mentioned in the Clean Air Act.
In support of Texas’ refusal to issue emission permits and its objection to the “tailoring rule” in the regulations mandating them, Attorney General Greg Abbott and Bryan Shaw, chairman of the Texas Commission on Environmental Quality, wrote to the EPA in 2010, asserting that CO2, instead of causing damaging climate disruption, is “a uniformly distributed, trace constituent of clean air, vital to all life, that is emitted by all productive activities on Earth.”
Despite such arguments, the Supreme Court’s ruling on Monday marked the third time since 2007 that it has upheld the EPA’s authority to regulate greenhouse gases as harmful pollutants.
The court ruled in 2007 that the agency could regulate those gases from motor vehicles. In 2011, the justices ruled that the EPA could limit emissions from new and existing power plants under a section of the Clean Air Act that is separate from the ones involved in Monday’s ruling. (That separate section of the law underpins the EPA’s recently proposed rules aimed at cutting existing power plants’ CO2 emissions by 30 percent.)
Although the EPA praised the Monday ruling and Scalia said the justices let the agency have most of what it wanted, Abbott issued a statement claiming victory in which he appeared to concentrate on the 5-4 decision against the “tailoring” element of the regulations:
The president has said over and over again that where Congress does not act, he will act unilaterally. The EPA’s greenhouse gas permitting scheme is a perfect example of that dangerous philosophy in action. Today the U.S. Supreme Court delivered a stern rebuke to the president. The Court’s ruling affirms that we are a nation of laws, and the president and his executive agencies must follow the law just like anybody else. When they do not, the courts will hold them accountable. This is a great victory for the rule of law and for the Constitution. It is a resounding defeat for those, like the president, who would use unelected bureaucracies to override the will of the people.
Jim Marston, the Environmental Defense Fund’s Austin-based vice president of the advocacy group’s U.S. Climate and Energy Program, focused in a statement on the fact the justices again allowed the EPA to continue regulating greenhouse emissions. Marston is a former Texas assistant attorney general.
The U.S. Supreme Court held today that the U.S. Environmental Protection Agency (EPA) permissibly read the Clean Air Act to require installation of the best available control technology for large new or rebuilt industrial pollution sources of greenhouse gases that are sources of other major air pollutants.
Texas has vociferously challenged these critical climate protections at every turn and has even gone so far as to ask the Supreme Court to reverse its decision in Massachusetts vs. EPA [the 2007 decision], which established EPA’s foundational authority to address climate pollution under the Clean Air Act. The Supreme Court declined to even hear arguments on that claim and, for the third time, has reaffirmed EPA’s bedrock authority to regulate climate pollution under our nation’s clean air laws.
As one of the largest and most industrial states in the country, Texas leaders should support EPA’s commonsense standards and lead the nation’s clean energy economy rather than fight against it. The majority of our state’s elected officials have vainly fought tooth and nail against EPA’s efforts to safeguard Texans’ health and wasted millions of taxpayer dollars in the process. It is past time Texas leaders stopped defending major polluters and started innovating rather than litigating.
Nathan Richardson, an attorney and resident scholar at Resources for the Future, a Washington-based think tank whose numerous corporate funders include ExxonMobil, Shell and other major energy companies, wrote on the organization’s blog that the EPA mainly prevailed, despite what might be suggested by the Supreme Court’s split decision.
The fact of the two rulings “makes it look like EPA won some and lost some,” he wrote. “That’s strictly true, but reality is much more favorable to the agency’s policy priorities. The [sources where the court allowed regulation] are large power plants and factories that emit 83 percent of stationary-source GHGs [greenhouse gases]. They’re the real prize here, and EPA gets to force them to do GHG BACT [best available control technology] when they are built or modify.”
As to the three percent of the 86 percent of greenhouse emissions for which the 5-4 ruling prevented the EPA from requiring permits, Richardson added that the agency “has been trying for years not to regulate them. There are a lot of small sources that EPA doesn’t really want to spend resources regulating. The only reason the agency went to all this trouble (tailoring, etc.) was because it read the statute as requiring [permit] review. [The Supreme Court] let them off the hook.”