A coal-fired plant in Juliette, Ga., is one of the nation's leading greenhouse gas polluters. / Gene Blythe, AP
WASHINGTON ‚?? A divided Supreme Court blocked the Obama administration Monday from requiring permits for greenhouse gas emissions from new or modified industrial facilities, but the ruling won't prohibit other means of regulating the pollutant that causes global warming.
The court's conservative wing ruled that the Environmental Protection Agency exceeded its authority by changing the emissions threshold for greenhouse gases in the Clean Air Act to regulate more stationary sources. That action can only be taken by Congress, Justice Antonin Scalia's opinion said.
The 5-4 ruling, which partially reverses a 2012 federal appeals court decision, represents a moral but somewhat hollow victory for industry and state government opponents of the federal regulations. They have complained that the rules could cost billions of dollars to implement and threaten thousands of jobs.
But the court said the EPA can regulate greenhouse gas emissions from industries already required to get permits for other air pollutants. Those generally are the largest power plants, refineries and other industrial facilities responsible for most such emissions.
"Today is a good day for all supporters of clean air and public health and those concerned with creating a better environment for future generations," the EPA said in a release. "The Supreme Court's decision is a win for our efforts to reduce carbon pollution, because it allows EPA, states and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources."
That portion of the decision was decided 7-2 and attracted support from the court's four liberals;only Justices Clarence Thomas and Samuel Alito dissented.
As a result, Scalia said, the agency will be able to regulate sources responsible for 83% of all greenhouse gases emitted from stationary sources nationwide, rather than 86% ‚?? a negligible reduction.
"It bears mention that EPA is getting almost everything it wanted in this case," Scalia said. To go further and require permits for all industries, he said, "would contradict the principle that Congress, not the president, makes the law, and would undermine the separation of powers that is crucial to our constitutional system of government."
The decision only removed one method the administration uses to regulate greenhouse gas emissions at power plants, refineries and other stationary sources, leaving other methods in place. That means the administration can move ahead with its new regulations on existing coal-fired power plants, which are intended to cut emissions by 30% from 2005 levels by 2030.
"Little in today's opinion casts any new doubts upon the legal validity of the recent regulations proposed by the Obama administration earlier this month," said Bruce Huber, a University of Notre Dame associate law professor. "However, in the long run, congressional action will be required if the EPA is to regulate greenhouse gases from all sources nationwide."
The court's liberal wing dissented from the main part of the decision, arguing that the EPA's re-interpretation of the Clean Air Act was reasonable in order to avoid an absurd over-regulation of pollutants such as carbon dioxide -- and would help the very industries seeking to overturn them.
"What sense does it make to read the (Clean Air) Act as generally granting the EPA the authority to regulate greenhouse gas emissions, and then to read it as denying that power with respect to the programs for large stationary sources at issue here?" Justice Stephen Breyer said.
Those four justices agreed with the second part of the ruling ‚?? that EPA can require greenhouse gas permits from industries already required to get the permits for other pollutants.
The high court ruled 5-4 in 2007 that greenhouse gases qualify as an air pollutant, even though their impact isn't as direct as others. That decision gave the EPA authority to regulate tailpipe emissions from motor vehicles. The stationary source regulation was the next step in the process.
Unlike other air pollutants, carbon dioxide emissions that contribute to global warming are so ubiquitous that the EPA raised the law's threshold level requiring a permit from 100 tons per year to at least 75,000 tons. Opponents decried the move as a major rewrite of the law ‚?? something only Congress can do.
Industries, a coalition of conservative states, Republican lawmakers and others claimed the Clean Air Act of 1970 doesn't empower the administration to regulate greenhouse gas emissions from power plants and other stationary sources. They say the regulations, begun in 2010, risk jobs and economic development.
Although the ruling was only a partial victory for industry, several trade groups expressed support.
"Today's decision will help to ensure that permitting requirements fall within the authority granted by Congress," said Harry Ng, vice president and general counsel of the American Petroleum Institute. "It is a stark reminder that the EPA's power is not unlimited."
The magic of Scalia's middle-ground ruling, however, was that it attracted huzzahs from environmentalists as well.
"EPA's foundational authority under the Clean Air Act to protect Americans' health from the clear and present danger of climate pollution is rock solid," said Vickie Patton, general counsel at the Environmental Defense Fund.
The administration, along with environmental groups and a number of other states, including California and New York, said the Clean Air Act was meant to address all air pollutants, including greenhouse gases. Once the administration addressed auto and truck emissions, they argued, the next natural step was power plants.
The EPA's decision to greatly multiply the level of emissions requiring a permit was simply common sense, proponents said. Otherwise, more than 80,000 midsize businesses, hospitals, universities, apartment buildings and shopping malls would have required permits.
In April, the Supreme Court handed the administration a major victory in another air pollution case, upholding a regulation that forces 28 states in the Midwest and South to reduce ozone and fine particle emissions that flow north and east into other states.
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