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June 23, 2014

Supreme Court Slightly Limits EPA's Power to Regulate Greenhouse Gases, While Reaffirming Its Power to Do So Generally

This story is being reported three different ways:

Fox News highlights the "good news" for conservatives, reporting that the Supreme Court dealt the EPA a setback.

The liberal LA Times highlights the good news for liberals: Supreme Court upholds rules curbing greenhouse gases from power plants.

Many outlet report it as a mixed bag, which it is. In fact, the LA Times might be slightly closer to right than Fox -- the Supreme Court's limits here seem pretty minor, even as they reaffirm that the EPA can regulate greenhouse gases even in absence of statutory authority.

By 7-2, the Court upheld the EPA's general self-asserted right to regulate carbon dioxide by entities already covered as "major polluters" in other areas (that is, with regard to other pollutants already named in Congressional law as actually within the EPA's ambit to regulate).

The major polluters are usually power plants.

By 5-4, the conservatives on the Court knocked down the EPA's attempt to "stretch" their grant of power to force anyone expanding their industrial operations to also employ the best available means for combatting "global warming."

Under the EPA's fanciful reading of the law, they could have also required basically anyone engaging in economic activity at all -- adding a new wing to a factory, say -- to undergo the EPA's onerous greenhouse-gas mitigation process.

This may seem like good news -- I suppose it is -- but it's barely good news. Scalia continues joining Roberts and Kennedy to reaffirm previous rulings that the EPA can regulate greenhouse gases, even though Congress never authorized that.

Yet Scalia also claims -- in the part of the decision limiting the EPA -- that it is an elemental principle of administrative agency law that an agency cannot grant itself more power than Congress has granted it.

Only Thomas and Alito voted to sustain all of the challenges to the EPA.

According to the 5-4 majority opinion penned by Scalia, the EPA is getting almost everything it wants:

EPA is getting almost everything it wanted in this case," Scalia said. He said the agency wanted to regulate 86 percent of all greenhouse gases emitted from plants nationwide, and it will it be able to regulate 83 percent of the emissions under the ruling. Justices Samuel Alito and Clarence Thomas said they would go farther and bar all regulation of greenhouse gases under the permitting program.

So Scalia says the EPA can't grab that 3% of made-up authority -- extending its authority from 83% to 86% -- but the first 83% was fine, a freebie.


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posted by Ace at 03:24 PM

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