the national interest

Did the Supreme Court Tip Its Hand on Climate Change?

The stacks from the Gavin coal burning power plant tower over the landscape on February 4, 2012 in Cheshire, Ohio
Photo: Benjamin Lowy/Getty Images

Few people noticed when the Supreme Court issued a ruling in favor of the Environmental Protection Agency yesterday. The ruling itself, which upheld the Cross-State Air Pollution Rule of the Clean Air Act, is at least a medium-size development; the EPA now has an effective tool to prevent states from allowing nitrogen oxide and sulfur dioxide to waft into neighboring states downwind. But perhaps more important is what it augurs not far down the road, when the Supreme Court issues a ruling that will be as divisive and consequential as its bitterly contested decision to mostly uphold Obamacare.

In June, the Environmental Protection Agency will issue regulations of greenhouse-gas emissions from existing power plants. My tediously reiterated belief is that the fate of these regulations constitutes the biggest story by far of President Obama’s second term, and arguably his entire presidency. It is, at the very least, a massively underappreciated development. Electric power accounts for about 40 percent of all U.S. greenhouse-gas emissions. There is no plausible way Obama can meet our international climate targets without limiting power-plant emissions, and no plausible way a global treaty to limit climate change can be signed without the United States.

Standing between Obama and a fighting chance to save the Earth is the Supreme Court. In 2007, the Court not only allowed but actually ordered the EPA to regulate heat-trapping gasses. The Bush administration evaded the order by refusing to open an email containing the agency’s official finding that greenhouse-gas emissions cause temperatures to rise. The Obama administration has issued a series of regulations covering cars, appliances, and new power-plants. But existing power-plants remain the key obstacle. The issue is not just their sheer size; the legal nuances of regulating power plants are devilish. The Clean Air Act simply requires the cleanest feasible technology, which would require shuttering all coal-burning plants, imposing huge costs. The EPA wants to tailor its standards to curtail emissions without a blunt-force ban on coal.

Whatever plan emerges will venture onto newer legal ground. Conservatives have adopted the paradoxical strategy of denying the EPA any flexibility to craft regulations, the theory being that forcing it to issue only massively expensive (and therefore politically toxic) regulations will result in them being overridden. Conservative suits to bring about such a result are already heading toward the Supreme Court.

Yesterday’s ruling, which concerns different sections of the Clean Air Act, provides some clues to the Court’s disposition. And for those of us uncomfortable with unleashing runaway temperatures upon future generations, those clues seem encouraging. The Court sided with the EPA by a comfortable 6-2 margin, with only Antonin Scalia and Clarence Thomas dissenting. John Walke of the Natural Resources Defense Council told the trade publication E&E, “Today’s decision offers encouraging signs for a carbon reduction program under the Clean Air Act, including the justices’ willingness to accord deference to EPA’s expertise and reasonable interpretations of a complex statute, and [the] leeway granted EPA to adopt flexible and sensible approaches to cost-effective reductions in air pollution.” What’s more, “EPA’s ability and need to ensure air pollution reductions and federal law enforcement in the face of any states that might not carry out those responsibilities in a timely fashion. All three parallels exist in a carbon pollution program under the Clean Air Act.” (The article with these quotes is paywalled.)

Photo: Paul Morigi/Getty Images

All this is to say that the Court endorsed the general principle of allowing the agency to design flexible regulations with real-world impacts in mind. It did not issue a ruling driven by a fear of plunging into an Orwellian dystopia in which remorseless, cosseted bureaucrats have extinguished the last flickering remnant of freedom. For that view, we can turn to Scalia, the fact of whose panic offered possible insight.

At the risk of venturing further into the sort of entrail-reading to which we must frequently resort when predicting the Court’s behavior, the vituperativeness of Scalia’s dissent implies that he, too, saw harrowing intimations of a larger defeat looming. He read his dissent out loud, lacing it with fearful and ideologically laden warnings. “Today’s decision feeds the uncontrolled growth of the administrative state at the expense of government by the people,” he opined. With familiar sarcasm, he lacerated  the EPA’s staff, whose “calculations can be performed at the desk, whereas the ‘from each according to its ability’ approach requires the unwieldy field examination of many pollution-producing sources with many sorts of equipment,” thereby raising the specter of Marx. And, he warned, the ruling “comes at the expense of endorsing, and thereby encouraging for the future, rogue administration of the law.”

Did the Supreme Court Tip Its Hand on Climate?