Thursday, May 01, 2014

Peering at Supreme Court entrails

Everyone says the recent Clean Air Act victory in the Supremes was a 'rare EPA success' and an equally rare defeat to the US Chamber of Commerce. Not too surprising given that the Court hasn't had an environmentalist serving on it since William Douglas left in 1975, while big corporate lawyers abound as justices.

The full decision is here, a good and brief writeup here. Some comments I've seen suggest it bodes well for more direct regulation of greenhouse gases. My first reaction was probably not, my second reaction is more hopeful.

The decision is about coal (mostly) pollution crossing state lines. Rather than the EPA beating up private industry, it's about the federal government playing an umpire role between states. Justice Kennedy makes a big deal about the important role of the states, so here he may have seen the EPA make sure states play nice with each other. Greenhouse gas regulation won't be seen in the same terms of protecting sovereign states from impacts across their borders.

On the other hand, EPA used a fairly liberal interpretation of its ability to protect against cross-border pollution that made the rule less onerous by applying a cost-benefit analysis. Opponents tried to make the law's required application so difficult that it wouldn't even be attempted, or at least delayed for years - a trick they've tried previously on Obamacare and greenhouse gases. Being flexible in order to make the law workable is a useful precedent here.

And of course this is one more thing making it hard for dirty coal plants to keep polluting. One more step in the right direction.


Anonymous said...

I think the significance is that, if the EPA rules look like the NRDC model legislation as expected, every state basically gets a different target they have to hit (but also a lot of options on how to comply).

States with a dirtier fuel mix would have a more lenient target than states who already have a cleaner fuel mix. The dirtier states do have to make bigger reductions in absolute terms, but the bar is set relative to their current fuel mix so they actually have a fighting chance.

I suppose this ruling helps protect the idea of tailoring regulations to each state.


Brian said...

Good point. Haven't heard much about the NRDC idea in recent months, though.

Hank Roberts said...

Justice Ginsburg … defined the legal mind as one that “can think about a thing inextricably attached to something else without thinking about the thing which it is attached to.”

Anonymous said...


NRDC issued an update recently -which I only know about because I was on the site looking for the 2012 report.

I guess the upcoming EPA rules are at OMB now; public in June. Then lawsuits for years.

"McCarthy said the regulations will give states the flexibility to meet federal guidance in various ways, so long as the result is significant cuts to emissions, and that the standard will recognize the different economic and regional differences between states

"That doesn't mean it is going to be so flexible that I won't be able to rely on this as a federally enforceable rule to deliver carbon pollution reductions at the level that our guidance indicates," she added."