For the third time in seven years, the Supreme Court this week reaffirmed the Environmental Protection Agency’s authority to regulate carbon dioxide and greenhouse gases. It’s hard to underestimate the importance of the ruling or the magnitude of the disaster that a denial of authority would represent.
The ruling is a victory for everyone who believes in the urgency of taking action in the face of man-made climate change, which is directly related to the emission of pollutants in the air. Unfortunately, because Congress has abdicated its authority to legislate on the topic of climate change, it has been left to EPA to make the rules.
In 2007, the Court ruled 5 to 4 in a landmark case that President Bush’s EPA had the authority to regulate greenhouse gases, including carbon dioxide. Until then, regulators had focused on other pollutants in the air — lead, for example. But as science gradually pointed to carbon dioxide as a climate-change contributor, the EPA was obliged to widen its reach.
Monday’s ruling was a direct outcome of the 2007 decision and a subsequent Supreme Court case in 2011 that once more rejected a broad challenge to the EPA’s rule-making and enforcement power. Based on those outcomes, the EPA enacted a rule that created standards for greenhouse-gas emissions.
The Court this week found that those standards varied significantly from the general standard for pollutants set by the 1970 Clean Air Act, a major piece of environmental regulation, and thus could not be enforced as written.
But Justice Antonin Scalia, who wrote the majority opinion, was obliged to acknowledge that the EPA could still regulate sources of greenhouse gases as long as they would already need permits to emit “conventional” pollutants.
That saved the day. As Justice Scalia noted, the EPA’s proposed rule would regulate sources responsible for 86 percent of all greenhouse gases from stationary sources (cement plants, power plants, refineries), but even after the denial it retains authority over 83 percent of these same emissions because the agency’s power extends to large, industrial polluters, regardless of the type of emission.
Justice Scalia gave the EPA a tongue-lashing for making up rules at variance with legislation. In theory, he’s right — this is never a good approach. But the EPA should not be faulted for acting in the face of an urgent need when Congress has repeatedly shown itself powerless to act, handcuffed by partisan wrangling.
Earlier this month, Congress’ failure to act prompted President Obama to put forth yet another pollution-fighting plan. This one directs the EPA to cut carbon pollution from power plants by 30 percent from 2005 levels by 2030. As with every action by the federal government in the realm of environmental protection, it was met with howls of protest from industrial sectors — the coal industry, in this instance — and Congress.
The coal rules will almost certainly be challenged in court. We are not in favor of unilateral executive action. There is room for debate on the best approach to dealing with pollution, but, once again, doing nothing is not an option. The president’s proposal, just like EPA’s approach to carbon-dioxide regulation, represents an effort to deal with climate change in the absence of congressional action.
No set of rules, however, can take the place of a thoughtful climate policy that deals with the reality of global warming. Until such a policy can be enacted, however, the EPA will remain the only game in town.