June 23, 2014

With 83 percent loaf, SCOTUS OKs EPA carbon controls at power plants

Subhead: Greg Abbott sues Obama again, loses again!

After a base ruling, on 5-4 majority, following up on a 2007 ruling that said the Environmental Protection Agency had the authority to regulate carbon dioxide emissions, the Supreme Court said that the EPA had overstepped its bounds on how it could regulate greenhouse gases from electric power plants. The court also said that it could not require a permit for greenhouse gases only; rather, such permits could only be required of plants that needed other pollution permits.

The main issue at stake here is that the EPA can't set different limits on greenhouse gases tahn on traditional pollutants, the court said. Because of that, the net effect will be that the EPA will be targeting relatively small as well as big emitters. And thus, it could see its efforts spread thin. The majority said that, even though GHGs are emitted at different levels than traditional pollutants, the EPA didn't have the right to adjust said levels itself, without an act of Congress.

But, after that, SCOTUS today broadly agreed with the EPA's right to regulate said emissions from electric power plants in general, as announced in a program earlier this month. The ruling does impose a few limits. The main one, per this piece, is that the EPA cannot force individual plants and companies to evaluate different ways to meet carbon goals, at least with any plant expansion that would increase carbon emissions.

Scotusblog separates out all the details of what the two rulings, together, mean.

With that first rebuke aside, it was pretty much a slam dunk, not only in scope, but in broadness of court backing:
Justice Antonin Scalia, writing for the court, said ‘‘EPA is getting almost everything it wanted in this case.’’ Scalia said the agency wanted to regulate 86 percent of all greenhouse gases emitted from plants nationwide. The agency will be able to regulate 83 percent of the emissions under the ruling, Scalia said. The court voted 7-2 in this portion of the decision, with Justices Samuel Alito and Clarence Thomas saying they would bar all regulation of greenhouse gases under the permitting program.
Kennedy joining in the majority is not a total surprise. This is a monetary issue, but where money meets social issues, he has a small corner of "social justice" Catholicism in his heart. Roberts is more surprising, and Nino Scalia, writing the opinion, no less, is more surprising yet.

Per commenters at the second-linked NYT piece, while this is purely a legal issue, it may mean that, beyond the legalities, at least some of the court's conservatives believe global warming is a real issue and of real concern.

And, it's a slapdown to wingnuts of the like that, cockroach-like, cover the ground here, per the third-linked story:
The utility industry, the U.S. Chamber of Commerce and 13 states led by Texas asked the court to rule that the EPA overstepped its authority by trying to regulate greenhouse gas emissions through the permitting program.
So,  take THAT, Greg Abbott.

Also of note is that SCOTUS declined to review its 2007 ruling when taking this case.

Polico made a hash of this story, other than noting the initial 5-4 ruling. Its top-linked story doesn't even mention the second, 7-2 opinion which is, really, the more serious one, and I have to wonder if it's deliberate.

That said, as I wrote at that time, that carbon regulation program is relatively lax and has half of its end goal already met. So, while this victory is nice, it doesn't mean that much environmentally, rather than legally, until and unless the EPA does more than it currently plans to do.

Meanwhile, back to that subhead, and the last pull quote.

I immediately tweeted the Abbott campaign, reminding him that he had just sued again and lost again. (That said, I'm sure he'll somehow try to spin the initial 5-4 vote as a win of some sort. I'm sure that he will NOT learn his lesson from the "main" 7-2 vote, and will continue to sue the EPA at the drop of a hat. Moron.)

He's not officially "spun" yet, but, per a Christian Science Monitor piece that takes a more skeptical view in general of just how much leeway SCOTUS gave the EPA, other conservatives are spinning. Oh, and I disagree with the CSM take on the ruling. Among other things, its story doesn't even mention SCOTUS' refusal to revisit its 2007 ruling, which was, itself, a defeat for the wingnuts. Scotusblog also agrees that this is generally a solid win for the EPA.

And yet, per the Texas Tribune, it's seemingly a kind of illogical win. The three conservatives who opposed the EPA's "tailoring" of emissions levels for GHGs nonetheless stood by it having the authority to regulate GHGs even though GHGs aren't specifically mentioned in the Clean Air Act, just unenumerated future pollutants.  If Congress is assumed, by the three "swing conservatives," to have given the EPA the authority to figure out what seeming pollutants, per post-1970s analysis, need regulation, then surely Congress gave EPA the same authority to set the standards for what counts as pollutants or not.

Even though Scalia read the decision, at heart, I'm seeing the sneaky hand of The Umpire, the same sneaky hand that was behind his switch on Obamacare, a switch done with the side benefit of killing off forcible Medicaid expansion, forcing the Obamacare non-user tax to be called a tax and not a few, and killing dead a highly expansive reading of the Commerce Clause.

One should never, ever, underestimate why The Umpire switches away from his seemingly "normal" side.

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