Clearing the air on EPA's Supreme Court 'mandate'

Not that it takes much to confuse Republican politicians more than they already are about the EPA and its regulation of greenhouse gases (GHGs), but the Greenwire article below tries to sow further confusion by claiming that Republicans are at least partially responsible for the confusion over whether the Supreme Court forced the EPA to regulate GHGs. Our comments are [bracketed in bold].

Congress emits half-truths in spin war over Mass. v. EPA (03/17/2011)
Lawrence Hurley and Elana Schor, E&E reporters

In the continuing political battle over the Obama administration’s efforts to regulate greenhouse gases, Democrats and Republicans rarely take aim at the most deserving target: the Supreme Court.

As Democrats are fond of noting, it wasn’t the Obama administration but the Supreme Court that decided in its 2007Massachusetts v. EPA ruling that greenhouse gases could be regulated under the Clean Air Act.

The court told U.S. EPA to conduct the analysis that led to the so-called endangerment finding — in which EPA concluded that greenhouse gases were harmful — that triggered rules that Republicans in particular are now railing against.

Like other major Supreme Court decisions — including the 2006 wetlands ruling in Rapanos v. United States that still has lawyers and EPA officials befuddled — the justices gave little thought to the practical or political impact of the decision (Greenwire, Feb. 7).

As a result, how lawmakers interpret the ruling varies wildly, depending on the party and environmental predilections of the specific lawmaker.

“The Supreme Court gave EPA permission to act, but it did not mandate it to act,” Sen. John Barrasso (R-Wyo.), <strong [Barrasso is correct] author of a bill that would strip the federal government of any authority over greenhouse gases, said in an interview. “I think EPA is overstepping what it should be doing in terms of impacting Americans’ ability to compete globally.”

Sen. Dianne Feinstein (D-Calif.), speaking for many on her side of the aisle, took a distinctly opposite view. “I believe EPA has to act under the Massachusetts case,” she said in an interview. [False. EPA can still change its mind and propose to unwind the endangerment finding. Explanation below.]

In Congress, both sides have perhaps been guilty of seeking to portray the decision in a simplistic way. Democrats say it gave the green light to greenhouse gas regulations, while Republicans maintain that EPA had a lot more leeway to resist issuing regulations than most legal experts say it really did. [False. Only Democrats are misprepresenting the decision.]

And both sides have a point, said Richard Frank, director of the California Environmental Law & Policy Center at the University of California, Davis.

“As with many things related to climate change and Congress, the truth is somewhere in the middle,” he said. [Not true.]

Republicans are technically right if they say the Supreme Court didn’t require EPA to find that greenhouse gases were harmful and therefore needed to be regulated, but Democrats are correct that once the endangerment finding was made, EPA had to regulate greenhouse emissions, beginning with vehicles. [This is wrong. The EPA does not have to regulate greenhouse gases. It could reverse the endangerment finding at any time thereby obviating the need to regulate.]

Put simply, it’s conceivable, as Jonathan Adler, a conservative law professor at Case Western Reserve University School of Law, points out, that a John McCain administration would have followed roughly the same course as the Obama administration.

That’s because the science that led to the endangerment finding was compelling, experts say. The George W. Bush administration’s EPA had pretty much admitted so before the Supreme Court took up the issue.

“If we had a President McCain, there would have been an endangerment finding,” Adler said in an interview. “It was virtually impossible for EPA to do anything but make an endangerment finding.” [Not true. Had EPA decided the science remained unsettled, that decision is unlikely to have been overturned under Chevron v. NRDC. This is a disappointing comment from Adler who used to work for CEI and is now a law professor.]

If a McCain-led EPA did not reach that conclusion, the administration would have faced an uphill legal battle, because environmentalists and states would have filed suit to force the issue, he added.

Congressional Republicans, meanwhile, are moving to force a legislative showdown over EPA’s power to regulate greenhouse gases. The full House is expected to vote early next month on a bill stopping the agency’s emissions rules, and the Senate is likely to take up a matching proposal after next week’s recess.

Sen. Chuck Grassley (R-Iowa), in a floor speech yesterday on that upper chamber’s anti-EPA plan, described the greenhouse gas rules as “a perfect example” of the Obama administration overstretching its regulatory authority.

“[T]hey did not have to do it just because the Supreme Court said they could do it,” the Iowan said. “But like regulators, they want to regulate, and they are moving ahead.” [Correct.]

‘Sweeping definition’

In his majority opinion for the court, which was split 5-4 on Massachusetts v. EPA, Justice John Paul Stevens wrote that it was a relatively simple task to find that the “sweeping definition” of air pollutants in the Clean Air Act should include greenhouse gases.

“If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions,” Stevens wrote. [Too bad Justice Stevens doesn’t understand the law. If there’s an endangerment funding then the EPA must act… except that it can revoke the endangerment funding and not act. So EPA has total discretion and there is no effective mandate.]

The Bush administration was reluctant to respond to the Supreme Court’s finding and effectively ran out the clock. The Obama administration thought differently and issued four key rules that are now under attack:

• The endangerment rule, which focuses on EPA’s initial decision in which it held that greenhouse gases are harmful.
• The “timing” rule, which requires that new controls of greenhouse gas emissions from stationary sources would be triggered on Jan. 2, 2011, the day that new motor vehicle standards go into effect.
• The “tailoring” rule, which interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions.
• The “tailpipe” rule, which adopts new standards for car and light-truck emissions.

All four aren’t just facing scrutiny in Congress. They are also subject to legal challenges now before the U.S. Circuit Court of Appeals for the District of Columbia (Greenwire, Dec. 14, 2010).

Roughly speaking, the Obama administration’s lawyers make the argument that once EPA made the endangerment finding, it was obligated to regulate not just vehicle emissions but also stationary source emissions. [Still wrong. EPA can do whatever it chooses to do.]

That’s what ultimately led to the most legally vulnerable of the four rules: the tailoring rule, which interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions.

To reach that result, the administration essentially had to amend the Clean Air Act to get the outcome it wanted. The alternative would have been that nonindustrial sources like schools and apartments would have been subject to regulation.

“Practically, it was necessary — but it was not legally mandated,” said Gregory Wannier, deputy director of the Center for Climate Change Law at Columbia Law School.

It is therefore an easy target for critics of the EPA regulations, such as Gregg Abbott, the Republican attorney general of Texas.

“Regardless of the desirability of these new thresholds as a policy matter, as a legal matter, the EPA lacks the legal authority to amend the plain terms of the Clean Water Act,” Abbott testified before the House Energy and Commerce Committee’s Subcommittee on Energy and Power.

The Supreme Court should have been aware of such problems when it issued its ruling, Case Western Reserve’s Adler said. The court was “dismissive of claims of impractical results.” The tailoring rule is “blatantly illegal,” Adler added. [Adler got that one right.]

“The Bush administration got criticism for taking liberty with the Clean Air Act, but the Obama administration has done them one better,” he said.

Supreme Court scholars?

On Capitol Hill, lawmakers have suddenly become Supreme Court scholars as they seek to offer their own interpretations of the ruling and what it did and did not allow EPA to do. They rarely delve into the individual rules, preferring instead to paint with a broader brush.

“They’ve gotten a 5-to-4 Supreme Court ruling that seemed to authorize this, and the administration is using it to go beyond what I think the Supreme Court approved,” Sen. Jeff Sessions (R-Ala.), a senior member of the Judiciary Committee, said in a recent interview. [As illustrated by Justice Stevens, above, a majority of the Supreme Court doesn’t probably really understand what it ruled.]

The politicization of the ruling is hardly new. Even before the House’s cap-and-trade climate bill stalled last year, effectively leaving EPA to a regulatory course that the Obama administration had hoped could be avoided via legislation, Republicans were charging the agency with using the high court for political cover.

Sen. James Inhofe of Oklahoma, the Environment and Public Works Committee’s top Republican, prodded EPA Administrator Lisa Jackson in February 2010 to admit that the Supreme Court did not force her to issue an “endangerment” finding on the health risks of carbon emissions.

“The three choices they gave you were to go ahead and find an endangerment, don’t find an endangerment, or review the science,” Inhofe told Jackson. [Inhofe gets it.]

But last November, as Inhofe’s party cruised to commanding Election Day gains, the “three choices” argument was elevated from hearing-room arcana to the crux of the GOP case against the complex web of EPA rules that respond to the Massachusetts ruling.

What the Supreme Court actually said is a little more nuanced.

It’s true that Stevens wrote that EPA could only avoid taking further action “if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine if they do.”

But that sentence appeared just a few paragraphs before Stevens dismissed the Bush administration’s “laundry list of reasons not to regulate,” such as various voluntary programs to reduce emissions that the administration supported.

As Columbia University’s Wannier pointed out, the decision stated that the cost to the economy of regulating greenhouse gases was not a “reasonable explanation” for avoiding the endangerment analysis. Nor was the assertion about scientific disagreements about climate change. And nor was the administration’s argument that it chose not to regulate greenhouse gases based on policy considerations.

[This is also wrong with respect to the science — the EPA conceded the science in the litigation. As Stevens wrote “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, therefore, EPA’s refusal to regulate such emissions “contributes” to Massachusetts’ injuries.In other words, the Bush administration already presented the Supreme Court with nearly all the arguments against regulating greenhouse gases that Republicans now offer. And they were rejected.” So EPA essentially conceded the endangerment finding. The lesson here is never ask a Bush administration lawyer for legal advice. Nevertheless, this is fixable. EPA could say the science no longer supports alarmism and reverse the endangerment funding.]

Those who say it was a realistic option not to do the endangerment analysis are “misreading the case,” Wannier said.

Under Republican scrutiny

But that hasn’t stopped anyone.

When the House Energy and Commerce Committee began taking up a bill to undo EPA’s Clean Air Act authority over greenhouse gases last month, both Republicans and Democrats read directly from the Supreme Court decision to bolster their stances on the measure.

“A 5-to-4 Supreme Court decision was good enough in Bush versus Gore to be settled,” Rep. Jay Inslee (D-Wash.) told his fellow panel members, “but all of a sudden, a 5-to-4 decision in the Supreme Court, you expect the EPA and us to just ignore.”

Reps. Lee Terry (R-Neb.) and Pete Olson (R-Texas), meanwhile, followed Inhofe’s example by pushing Jackson to explain whether the 2007 ruling forced her hand or simply gave EPA the option to pursue its current path. As ever, Jackson replied that her agency had no viable response to the court without choosing to find endangerment of public health.

The five justices in the majority, Jackson told Energy and Commerce members, said that “only if … we could come up with reasonable science, which I do not believe exists, that shows that greenhouse gases do not endanger public health and welfare, could we ignore it.” [This comment shows that Lisa Jackson knows the endangerment finding is not written in stone.]

Whether the Massachusetts decision constituted a mandate or a set of options for EPA, then, could ultimately force lawmakers to reopen debate over climate science — an avenue that Energy and Commerce took up last week at the behest of its Democratic minority (Greenwire, March 8). Republicans, however, prefer to discuss their strike against EPA in the context of economic growth and its relationship to federal regulations.

And Democrats also have a political interest in depicting the Supreme Court ruling as a strict mandate for EPA to act on greenhouse gases. Such a cut-and-dried argument allows the president’s party to mount a stronger defense of the agency at a time when its power over multiple types of emissions is under Republican scrutiny.

“The Supreme Court’s opinion speaks for itself. … That’s the law of the land,” Sen. Richard Blumenthal (Conn.), another Judiciary Democrat, said in an interview last week. “What matters is whether EPA is following the law.” [No, the EPA is the law of the land.]

Perhaps lawmakers need a crash course in what the court actually said.

Asked if the Senate Judiciary Committee, on which she sits, had a role to play in clarifying the uncertainty over the decision, Feinstein termed it an “interesting question.”

“I don’t know how far it’ll travel, to be honest with you,” the Californian said of House Republicans’ pushback on the EPA regulations. “It may well be that the Judiciary Committee, at a certain point, if this thing goes on, ought to take a look at it.”

Click here to read the Supreme Court ruling.

The bottom line: This debate, as bogus as it is, does show that the EPA has unfettered discretion to regulate or not to regulate greenhouse gases. Should a federal agency have such arbitrary authority over our entire society?