In his Rose Garden climate address this summer, President Obama acknowledged that his first choice for controlling America's greenhouse gas emissions, congressional action, was likely to be stymied and that he would have to fall back on his second choice, regulation by EPA under the Clean Air Act.
This morning, the Supreme Court handed a significant victory to the President and to EPA. The justices let stand the foundational element of the EPA's greenhouse gas regulations -- the scientific finding that these gases "endanger" public health -- as well as the agency's ambitious controls on trucks and automobiles.
The Supreme Court will review EPA's treatment of a relatively arcane question concerning the permitting requirements for certain new pollution sources. But contrary to some reports, this is not a general review of EPA's climate regulation. In fact, no matter how the Supreme Court decides the issue that it has taken up, it will not compromise the main thrust of the president's climate action plan.
As the president announced in that summer speech, EPA is implementing a comprehensive program to control such emissions from stationary sources. In this connection, last month, EPA proposed rules for new power plants -- a major source of greenhouse gases. Early next year, it plans to propose similar rules for existing sources.
With today's decision not to review the central tenets of EPA's authority, the agency can now proceed with its rules to decrease the flow of heat-trapping emissions from the smoke stacks of our nation's plants and factories as well as those from our cars, trucks, and airplanes.
The Supreme Court's review announced today concerns different legal provisions in the Clean Air Act than the one EPA is focused on for its upcoming rules. Those rules will be issued under section 111, which provides EPA the authority to regulate "air pollution" that "endanger[s] public health or welfare." In 2007, in the landmark case of Massachusetts v. EPA, the Supreme Court upheld EPA's determination that greenhouse gases are "air pollutants" for the purposes of the Clean Air Act.
Today, the Supreme Court declined to review EPA's determination that greenhouse gases "endanger public health." So, EPA now as a green light to continue moving forward with its regulatory program. On this central point, the challengers have come to the end of the road and EPA's regulatory program is the law of the land.
Rather than allowing further litigation over broad questions concerning EPA's ability to regulate the greenhouse gas emissions of stationary and mobile sources, as industry groups asked it to do, the Court agreed to review only one narrow issue involving the question of whether certain facilities that emit greenhouse gases need to get a permit under the Clean Air Act's Prevention of Significant Deterioration Program.
Once the rules on stationary sources announced by the president are in place, that issue -- even if the Supreme Court rules against EPA -- will have only a trivial impact on EPA's climate change program. Thus, the question taken by the Supreme Court will have very limited real world consequences on greenhouse gas emissions.
Those who interpret the Supreme Court's consideration of this narrow element to mean that the administrations planned greenhouse gas regulations cannot move forward are simply wrong. This decision raises no plausible question about EPA's authority to do so. Quite to the contrary, the agency has now overcome the last remaining hurdle -- the upholding of the endangerment finding -- on its way to robustly regulated greenhouse gases under the Clean Air Act.