Supreme Court Fails to Rein in EPA

andrew klosterANDREW KLOSTER, HERITAGE FOUNDATION

Contrary to headlines like Fox New’s “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 delivered today, the U.S. Supreme Court ensured that the EPA will continue to seek 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 more egregious abuses.

Since the opinion (and the regulations) are very complicated, here is a recap. The Clean Air Act authorizes the EPA to regulate greenhouse gases as an “air pollutant.” This might sound odd, but the Supreme Court in a 2007 case said so. Under that law, the EPA has started to require permits for “major emitting facilities” of greenhouse gases. The problem is that the text of the Clean Air Act sets the bar so low that EPA could be regulating almost any building in America, such as large apartment buildings or offices (under different authority, the EPA even suggested regulating lawnmowers).

Because this would be absurd, the EPA decided that it would set the bar higher. And today, the Supreme Court said that “rewriting” the law is not something the EPA can do. In other words, it was stepping outside the law.

This sort of uncertainty has real economic consequences.

So far, so good. However, 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 you’re swept up under a regulation governing these non-greenhouse gas pollutants, the EPA will often require you 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. And 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 sorts of litigation.

This sort of uncertainty has real economic consequences. If you’re a business hoping to construct a factory, you now know that you’re in the clear if all you emit is carbon dioxide, a greenhouse gas. But if you emit something else, EPA might require you to install CO2 controls, and it might decide to require you to do other things as well.

Further, 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 will effectively 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 these regulations could adversely affect your energy bill.  Since a majority of our energy needs are met by affordable, reliable, carbon-emitting conventional fuels, regulation in this area could significantly drive up our energy bills.

Heritage Foundation economists modeled the phasing out of coal, which is what the EPA’s climate regulations and other proposed and implemented regulations would essentially 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, however, the Clean Air Act is a statute, and Congress and the president can work together to amend the Act to cabin the EPA’s regulatory authority. While Congress did reject cap-and-trade plans, they should prevent unelected officials from implementing the regulatory equivalent.


This article was originally published at Heritage.org. Used with permission.


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