Direct implications are limited, but we'll be reading the tea leaves for future implications.
Scholars, lawyers, and judges will be spending a lot of time dissecting today’s ruling. Overall, it’s a bit like yesterday’s World Cup game — EPA didn’t win outright but it didn’t lose either.
Here are three key questions with some initial thoughts:
What is the direct legal impact of the ruling? This was really a split decision. Some sources will escape being covered by EPA’s greenhouse gas rule, but most sources (over 80%, according to the Court) remain covered. So EPA can claim that it gained more than it lost from the decision. It is also important to note that seven Justices have now confirmed the ruling in Massachusetts v. EPA that the Clean Air Act covers greenhouse gases. The Court also failed to review, and thereby upheld, the greenhouse gas rule for vehicles.
What is the political effect? Everybody on both sides will be spinning the decision. My guess is that the spins will cancel, and there won’t be any net political impact.
How does the decision affect EPA’s current proposals? This is probably the most important question and the hardest to answer. Technically, there’s no effect: the current proposals involve an entirely different section of the statute, as the Court makes clear in a footnote. But there’s some language in the opinion that seems unhelpful:
“We acknowledge the potential for greenhouse-gas BACT to lead to an unreasonable and unanticipated degree of regulation, and our decision should not be taken as an endorsement of all aspects of EPA’s current approach, nor as a free rein for any future regulatory application of BACT in this distinct context. Our narrow holding is that nothing in the statute categorically prohibits EPA from interpreting the BACT provision to apply to greenhouse gases emitted by certain sources."
That language doesn’t directly apply — different section of the statute, different language and history. But it does seems to indicate a willingness by the Court to second-guess the reasonableness of EPA’s regulations to ensure that they don’t expand regulatory authority too much. This language is hard to square with the general rule that it’s up to the agency, not the Court, to make policy decisions about the statute. The current make-up of the Court seems to be four Justice who will support EPA as far as the language of the statute will go; two who will resist all greenhouse gas regulation; and three who are willing to give EPA some slack but who are worried about letting EPA go too far. We’ll see whether EPA sees this as a signal to trim back its proposal.
This blog is cross-posted on Legal Planet.
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Daniel Farber | June 23, 2014
Direct implications are limited, but we’ll be reading the tea leaves for future implications. Scholars, lawyers, and judges will be spending a lot of time dissecting today’s ruling. Overall, it’s a bit like yesterday’s World Cup game — EPA didn’t win outright but it didn’t lose either. Here are three key questions with some […]
Alice Kaswan | June 19, 2014
Power plants are not only one of the nation’s largest sources of greenhouse gases, they are also a significant source of sulfur dioxide, nitrogen oxides, particulates, and mercury, all of which have direct public health and welfare consequences. EPA’s recently proposed Clean Power Plan, which applies Clean Air Act § 111(d) to reduce greenhouse gases […]
| June 12, 2014
With little notice in the West, India has just launched the most far-reaching corporate social responsibility (CSR) program in the world. The CSR law, which took effect April 1, requires large and mid-sized firms to contribute at least 2% of their pre-tax profits (averaged over the previous three years) to social, health, educational, or environmental […]
Robin Kundis Craig | June 11, 2014
On Monday, June 9, 2014, the U.S. Supreme Court decided CTS Corp. v. Waldburger, — U.S. —, — S. Ct. —, 2014 WL 2560466 (June 9, 2014), a case that posed the seemingly simple legal question of whether the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund), 42 U.S.C. §§ […]
Daniel Farber | June 11, 2014
OIRA should conduct a cost-benefit analysis of its own activities and explore alternatives to its current oversight methods. A White House office called OIRA polices regulations by other agencies in the executive branch. OIRA basically performs the role of a traditional regulator – it issues regulations that bind other agencies, and agencies need OIRA approval before […]
Joseph Tomain | June 9, 2014
The EPA’s June 2, 2014 announcement of a Clean Power Plan is momentous. On the surface, its scope, complexity, potential for myriad legal challenges and, not to mention, the difficulty of gathering reliable cost and benefit data, make it so. Mothers should advise their children to grow up to be energy lawyers, not cowboys. However, what […]
William Buzbee | June 3, 2014
On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants. And because the largest GHG emitters in this category are coal burning plants, such […]
Daniel Farber | June 2, 2014
Megan Herzog has done a great job of explaining the background of the rules and summarizing the proposal in her blog posts. I just wanted to add a quick note about how EPA has structured its rules in light of possible legal challenges. The fundamental issue facing EPA is how to define the “best system” for […]
Erin Kesler | June 2, 2014
Today, Center for Progressive Reform Member Scholar Robert Verchick published an op-ed in New Orleans’ Times-Picayune entitled, “Gov. Jindal, don’t sign away our legal claims against BP.” The piece notes: Governor Jindal will probably sign SB469, a bill designed to neutralize the Southeast Louisiana Flood Protection Authority – East’s lawsuit against oil and gas companies. But does […]