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

President Barack Obama speaks at the southern site of the Keystone XL pipeline on March 22, 2012 in Cushing, Oklahoma.
National Journal
Justice Gilpin-Green and 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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