The Supreme Court Case That Could Upend Obama’s Climate Agenda

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President Barack Obama speaks at the southern site of the Keystone XL pipeline on March 22, 2012 in Cushing, Oklahoma.
National Journal
Coral Davenport
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Coral Davenport
Oct. 15, 2013, 12:22 p.m.

By agree­ing to hear a nar­rowly fo­cused chal­lenge to one por­tion of the Obama ad­min­is­tra­tion’s glob­al-warm­ing reg­u­lat­ory agenda, the Su­preme Court on Tues­day cast un­cer­tainty on the scope and tim­ing of Pres­id­ent Obama’s am­bi­tious ef­forts to fight cli­mate change — an is­sue on which, like his sig­na­ture health care law, he hopes to build his leg­acy.

In tak­ing up the ap­peal, the Court de­clined to go as far as con­ser­vat­ives and in­dustry groups had hoped, de­clin­ing to re­view wheth­er the gov­ern­ment pos­sesses the leg­al au­thor­ity at all to reg­u­late so-called green­house gases. Still, the case raises the ques­tion of just how far the ad­min­is­tra­tion can go to use that au­thor­ity to im­pose reg­u­la­tions on ma­jor pol­luters such as factor­ies and oil re­finer­ies.

The case high­lights one of the sig­na­ture dif­fi­culties of Obama’s ef­forts to com­bat glob­al warm­ing. Ab­sent ac­tion from a grid­locked Con­gress, Obama and the En­vir­on­ment­al Pro­tec­tion Agency are at­tempt­ing to use the ex­ist­ing au­thor­ity of the 40-year-old Clean Air Act to write new rules gov­ern­ing cli­mate change and car­bon pol­lu­tion. While the law gives the fed­er­al gov­ern­ment the au­thor­ity to do this, its stat­utes, which were writ­ten in an era be­fore fears of the shift­ing cli­mate, aren’t clear on ex­actly how the law can be in­ter­preted to counter car­bon pol­lu­tion — which may lead to leg­al vul­ner­ab­il­it­ies.

En­vir­on­ment­al act­iv­ists claimed a vic­tory as the Court de­clined to take up cases ques­tion­ing the leg­al un­der­pin­nings of the Obama ad­min­is­tra­tion’s con­tro­ver­sial new plans to roll out a series of EPA reg­u­la­tions that would cut car­bon pol­lu­tion from coal-fired power plants. Once fi­nal­ized, the rules will likely freeze con­struc­tion of coal plants and even­tu­ally lead to the shut­down of ex­ist­ing ones. Coal plants are the biggest con­trib­ut­ors to U.S. car­bon pol­lu­tion. “By de­clin­ing to hear those cases, they es­sen­tially up­held those [court rul­ings] — so they are the law of the land,” said John Walke, an at­tor­ney with the Nat­ur­al Re­sources De­fense Coun­cil.

Oil, chem­ic­al, man­u­fac­tur­ing, and oth­er in­dustry groups also cel­eb­rated, however, as the Court agreed to hear a chal­lenge to one nar­row piece of the leg­al ar­chi­tec­ture of Obama’s strategy for com­bat­ing cli­mate change. If the high court, which is likely to hear the case in Feb­ru­ary or March, were to over­turn that piece of the re­gime, it could throw ele­ments of Obama’s agenda in­to dis­ar­ray, while lim­it­ing fu­ture ad­min­is­tra­tions from reg­u­lat­ing large-scale car­bon pol­luters like oil re­finer­ies and factor­ies.

Both sides say there’s a broad spec­trum of pos­sible out­comes be­fore the Court. “It will really de­pend on how the Su­preme Court writes the de­cision,” said Jac­ob Hollinger, a part­ner in the en­ergy prac­tice at the New York firm of Mc­Der­mott, Will & Emery, who was un­til Au­gust a seni­or EPA at­tor­ney spe­cial­iz­ing in clean-air is­sues. “It will de­pend on the lo­gic of the de­cision. It could have a big im­pact or a very little im­pact.”

At is­sue is the ques­tion of wheth­er the EPA prop­erly set up its reg­u­lat­ory scheme for ma­jor sta­tion­ary pol­luters such as coal-fired power plants and oil re­finers. In 2010, the EPA is­sued a reg­u­la­tion re­quir­ing car­bon-pol­lu­tion con­trols for vehicles, a rule which the Su­preme Court up­held. The agency then con­ten­ded that vehicle rule triggered a second batch of reg­u­la­tions re­quir­ing states to is­sue per­mits to con­trol car­bon pol­lu­tion from in­dus­tri­al sta­tion­ary sources. It’s the leg­al­ity of that trig­ger — from mov­ing from vehicles tailpipe stand­ards to per­mits for big, in­dus­tri­al sta­tion­ary sources — that the Su­preme Court will con­sider.

Ro­ger Mar­tella, who served as EPA’s gen­er­al coun­sel dur­ing the George W. Bush ad­min­is­tra­tion and now rep­res­ents the Amer­ic­an Chem­istry Coun­cil, one of the plaintiffs in the case, said, “It opens up the door for the Court to con­sider what’s al­ways been the most con­tro­ver­sial part of EPA’s green­house-gas rules, which is us­ing reg­u­la­tions for cars to trig­ger reg­u­la­tions for sta­tion­ary sources. This is the guts of EPA’s cli­mate-change reg­u­lat­ory pro­gram.”

Among the op­tions avail­able to the Court: It could up­hold EPA’s use of the car-to-sta­tion­ary-sources “trig­ger,” an ul­ti­mate vin­dic­a­tion for Obama and en­vir­on­ment­al­ists. It could broadly up­hold the EPA’s au­thor­ity to reg­u­late sta­tion­ary sources, but dir­ect the agency to do so us­ing a dif­fer­ent set of leg­al re­quire­ments — in oth­er words, said Mar­tella, “the Court could send them back to the draw­ing board.” Or it could flat-out re­ject EPA’s au­thor­ity to reg­u­late sta­tion­ary pol­lu­tion sources un­der that par­tic­u­lar por­tion of the law.

It re­mains un­clear what im­pact that would have on the Obama EPA’s cur­rent cli­mate-change reg­u­la­tions. The agency has is­sued new draft rules cut­ting pol­lu­tion from new coal plants, and Obama has giv­en it a tight dead­line for more reg­u­la­tions — in­clud­ing a draft rule to be is­sued next June aimed at cut­ting pol­lu­tion from ex­ist­ing coal plants.

“Usu­ally this level of un­cer­tainty puts things on hi­atus for a time,” Mar­tella said. “The con­ven­tion­al wis­dom is you wait and see what the Su­preme Court de­cision is go­ing to be. And there’s no way to know how they could de­cide this.”

Cla­ri­fic­a­tion: This post has been ed­ited to cla­ri­fy that the Su­preme Court’s de­cision not to take up key chal­lenges to earli­er ma­jor court rul­ings on cli­mate change en­sured that those court rul­ings now stand as law, but that the Su­preme Court will take up the nar­row­er ques­tion of wheth­er it is leg­al for the En­vir­on­ment­al Pro­tec­tion Agency to use car­bon pol­lu­tion stand­ards for vehicles to trig­ger a re­quire­ment that states is­sue car­bon pol­lu­tion per­mits for sta­tion­ary in­dus­tri­al sources of car­bon emis­sions.

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