The EPA might be headed for a bruising at the Ole Supreme Court
Does federal law empower the Environmental Protection Agency (EPA) to regulate every non-moving source of carbon dioxide in America? The Supreme Court will decide that question in early 2014.
The Supreme Court decided Massachusetts v. EPA in 2007, a lawsuit brought by the Bay State (with the support of Gov. Mitt Romney) to force the Bush EPA to make a finding as to whether carbon dioxide is a pollutant that endangers the environment. The Court surprised many legal experts when it held in a 5-4 decision, led by the liberal wing of the Court, that states have standing under Article III of the Constitution to sue the federal government over questions of federal law, despite the fact that it was disputed (1) whether global warming is even happening at all, (2) if so, whether it is caused by human activity generating GHGs (greenhouse gases) like carbon dioxide, and further (3) that is undisputed that only 20 percent of GHGs come from the United States, so no Supreme Court order could effectively remedy this problem even if it exists.
After Barack Obama became president in 2009, the EPA issued an official finding that carbon dioxide is a pollutant that harms the environment, notwithstanding the fact that (1) all animals exhale carbon dioxide, (2) that it is necessary for plants to live, and (3) that every form of fire and combustion generates carbon emissions.
EPA went on to invoke the Clean Air Act, passed by Congress in 1970, as authorizing it to regulate these carbon emissions. Various lawsuits were filed, challenging the unprecedentedly broad scope of these new EPA rules.
On Oct. 15, the Supreme Court granted review in Utility Air Regulatory Group v. EPA, limiting the Court’s review in this first modern case exploring this subject to determining whether the EPA’s permitting scheme for new cars legally authorizes the EPA to also regulate all stationary sources of GHGs. If so, then the federal EPA in Washington, DC can regulate not just your local power plant, but also your home stove, fireplace, campfire, and furnace.
Arguments are likely to be scheduled around February, with a decision before July 2014.