A few years ago, the EPA added carbon dioxide to an established program that limits emissions of harmful pollutants. But there was a problem: the Clean Air Act says that permits are required by any source that emits more than 250 tons of a covered pollutant. Because CO2 is such a common gas, this would have forced tens of thousands of small sources to go through an expensive and pointless permitting process, something EPA wanted to avoid. So, for CO2 only, they unilaterally changed the threshold to 100,000 tons per year. This exempted most large businesses, but it also gave critics an opening to challenge the law. Today they won:
The Supreme Court, in a split ruling, has blocked the Obama administration from requiring special permits for some new power plants, but upheld them for others. In a dense 5-4 decision Monday, the justices said the Environmental Protection Agency had wrongly stretched an anti-pollution provision of the Clean Air Act to cover carbon emissions in new or modified plants.
But the ruling was confined to only one regulatory provision, and it is not likely to directly affect the broader climate-change policy that the administration announced earlier this month. That policy relies on a different part of the law that says states must take steps to reduce harmful air pollutants, which include greenhouse gases.
This doesn’t affect the EPA’s recent proposal that would limit CO2 emissions from power plants, since that relies on a different provision of the Clean Air Act that’s already been blessed by the Supreme Court. However, today’s ruling is a demonstration of something I’ve mentioned before: When an executive agency modifies the way it interprets a law, it’s a fairly routine affair. Interpretations of federal statutes, especially complex regulatory constructions, are notoriously difficult, and agencies do it all the time. There’s no presidential “lawlessness” or “tyranny” involved, and disputes over these interpretations are routinely resolved by courts. In this case, it was obviously a close call, since the decision was 5-4 and the opinion was long and dense.
This is what’s likely to happen in other cases where the Obama administration has interpreted a law in ways that his critics don’t like. If the critics are serious, they’ll go to court, and in some cases they’ll win. In others, they’ll lose. Welcome to the 21st century.
UPDATE: I wrote this hastily because—and I know you’re going to love this excuse—a temporary crown fell out and I had to pop out to my dentist to get it re-cemented. But now that I’m back, it’s worth pointing out that today’s Supreme Court decision actually upheld most of the EPA’s new limitations on CO2 emissions. The main reason I highlighted the one piece they struck down was because I wanted to make a point about presidential “lawlessness” that’s become such a talking point on the right these days. In the case of the 250-ton rule, the EPA tried to reinterpret the law and the court ruled against them. Other interpretations were upheld. That’s the way this stuff goes.