Supreme Court Slightly Weakens EPA Global-Warming Program

The decision does not address EPA’s new proposals to set carbon-emissions standards for power plants.

Haven, West Virginia, October 30, 2009. In cooperation with AEP, the French company Alstom unveiled the world's largest carbon capture facility at a coal plant, so called 'clean coal,' which will store around 100,000 metric tonnes of carbon dioxide a year 2.1 kilometers (7,200 feet) underground. 
National Journal
Ben Geman
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Ben Geman
June 23, 2014, 6:54 a.m.

The Su­preme Court on Monday slightly weakened the En­vir­on­ment­al Pro­tec­tion Agency’s power to force in­dus­tri­al pol­lu­tion sources to curb green­house-gas emis­sions as a con­di­tion of their Clean Air Act per­mits.

The de­cision does not ad­dress EPA’s re­cent sweep­ing pro­pos­al to set car­bon-emis­sions stand­ards for power plants, which is a center­piece of Pres­id­ent Obama’s second-term cli­mate agenda. Nor does it chal­lenge EPA’s un­der­ly­ing au­thor­ity to reg­u­late heat-trap­ping emis­sions.

In­stead, the rul­ing ad­dresses an ex­ist­ing per­mit­ting pro­gram launched sev­er­al years ago.

The high court ruled 5-4 that EPA may only re­quire newly built or mod­i­fied in­dus­tri­al pol­lu­tion sources — such as power plants, re­finer­ies and factor­ies — to lim­it green­house gases if those same sources must already ob­tain per­mits for their so-called con­ven­tion­al pol­lut­ants. 

In prac­tice, that means only a slight change in the num­ber of big in­dus­tri­al pol­luters that would be cap­tured by the ex­ist­ing, case-by-case green­house-gas per­mit­ting pro­gram at is­sue in the case de­cided Monday. The per­mit­ting pro­gram it­self was not struck down.

The per­mit­ting pro­gram re­quires pol­luters to use so-called best avail­able con­trol tech­no­logy, which for green­house gases has largely meant in­creased en­ergy ef­fi­ciency thus far, the Obama ad­min­is­tra­tion noted when de­fend­ing the pro­gram be­fore the Court in Feb­ru­ary.

Lim­it­ing the pro­gram to fa­cil­it­ies that must already get per­mits for their con­ven­tion­al pol­lut­ants (such as emis­sions that cause smog) ad­dresses the sources of 83 per­cent of U.S. green­house-gas emis­sions from in­dus­tri­al pol­luters, com­pared with 86 per­cent without that re­stric­tion, ac­cord­ing to the Obama ad­min­is­tra­tion.

“EPA is get­ting al­most everything it wanted in this case,” Justice Ant­on­in Scalia said from the bench in an­noun­cing the rul­ing Monday, ac­cord­ing to press ac­counts.

However, there will be plenty of tea-leaves read­ing about what this por­tends for the sweep­ing power-plant stand­ards that EPA is plan­ning to fi­nal­ize next June, es­pe­cially about wheth­er con­ser­vat­ive justices will take a nar­row view of the scope of EPA’s dis­cre­tion in craft­ing that reg­u­la­tion.

EPA called the rul­ing a vic­tory.

“The Su­preme Court’s de­cision is a win for our ef­forts to re­duce car­bon pol­lu­tion be­cause it al­lows EPA, states, and oth­er per­mit­ting au­thor­it­ies to con­tin­ue to re­quire car­bon-pol­lu­tion lim­its in per­mits for the largest pol­lu­tion sources,” the agency said in a state­ment.

However, the Amer­ic­an Pet­ro­leum In­sti­tute, one of an ar­ray of in­dustry lob­by­ing groups to chal­lenge EPA’s per­mit­ting rules, saw good news as well.

“It is a stark re­mind­er that the EPA’s power is not un­lim­ited,” said Harry Ng, the group’s gen­er­al coun­sel.

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