Divided government gridlock spawned an important new consequence Tuesday. At a time when there’s no chance Congress and the president will agree on any environmental legislation, the Supreme Court agreed to settle a benchmark question about federal powers to control pollution and climate change.
While almost all attention was focused on finding a buy-a-little-time solution to the twin budgetary crises at hand — the shutdown in its third week and the potential for default in a few days — the justices inserted themselves as deeply as ever into a global crisis that’s sure to be around for decades, regardless of whether the federal fiscal house is allowed to crumble.
The court said it would decide whether the Environmental Protection Agency is overstepping its legal authority by planning to regulate greenhouse gas emissions from factories and power plants that are the prime suspects of global warming.
A panel of three judges on the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously last year that the agency was using its powers properly. Tuesday’s announcement that the Supreme Court will hear six different appeals of that decision means at least four justices are willing to consider the possibility of overruling the lower court.
The court will hear oral arguments early next year and rule by June 2014, four months before the midterm elections. A ruling that stops the EPA from stepping in so aggressively in the absence of legislation could propel environmental policy to an until-now-unexpected position of prominence in campaigns for control of Congress next year.
Such a deregulatory decision would be one that almost all Republican candidates would be happy with, while environmentalists in the Democratic base could be counted on to push hard to elect enough new sympathetic lawmakers to return global warming to the legislative agenda in the final two years of President Barack Obama’s tenure in office.
What’s at issue is the most assertive move the Obama administration has made to date to tackle global warming. It is now requiring that companies wanting to expand or build facilities that pollute must obtain a permit by proving they have analyzed the best technologies available for reducing carbon dioxide, the No. 1 greenhouse gas.
This is the only regulation many industrial complexes will confront until the administration completes its really big move, which is to set national standards for such facilities — starting with existing power plants. Obama has asked the EPA to propose regulations for existing power plants, the principal unregulated source of global warming, by next summer.
The Supreme Court ruled in 2007 that the Clean Air Act gives the EPA authority to regulate car and truck emissions of greenhouse gases as air pollution. Two years later, after Obama became president, the agency declared that all the carbon dioxide and other heat-trapping gases in the atmosphere were dangers to human health and welfare — its legal justification for expanding its authority beyond automobiles to include manufacturers and utilities.
Fervently — albeit just out of earshot for the past couple of months during the budget showdown — congressional Republicans and business groups have been leveling withering criticism at the administration for this strategy, arguing it’s an improper if not genuinely illegal effort to impose the environmental policies it could not get enacted into law. (Congressional momentum for a cap-and-trade climate change statute faded after a Democrat-controlled House passed such a measure in 2009, and the issue has been totally moribund since the GOP's takeover the next year.)
Nine different appeals of the D.C. Circuit’s decision were filed and six were granted — from groups including the U.S. Chamber of Commerce, the states of Alaska and Texas, and associations of oil companies and chemical manufacturers.
Many of the appeals asked the court to strike down all EPA regulations of greenhouse gases and to declare that the agency was out of bounds in its conclusion that carbon emissions are a threat to public health and the planet. The court essentially sided with the administration by not taking on those fundamental questions, which gave environmental groups reason for an immediate sigh of relief and optimism about their prospects.
At a minimum, declared Vickie Patton, the top lawyer for the Environmental Defense Fund, the limited scope of the case makes it “abundantly clear, once and for all, that EPA has both the legal authority and the responsibility to address climate change and the carbon pollution that causes it.”
Not so, declared Harry Ng, the top lawyer for the American Petroleum Institute. At a minimum, he said, the court’s decision to hear half a dozen cases shows it is open to the argument that "the EPA is seeking to regulate U.S. manufacturing in a way that Congress never planned and never intended."
Both may be right. At a minimum, the current judicial branch has signaled yet again that it’s willing to step in when the current legislative and executive branches stay at loggerheads too long.