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Obama Vows to Act on Climate Change, Justices Weigh His Approach

By Adam Liptak (The New York Times) - February 20, 2014

President Obama in recent days has been announcing muscular executive actions to address climate change, making good on his promise to act on pressing problems “with or without Congress.” On Monday, the Supreme Court will consider the limits of that approach, in a case on greenhouse gas emissions.

The justices are poised to decide whether the Obama administration went too far in trying to regulate emissions from stationary sources like power plants. In the process, they are likely to weigh in on a central Republican critique of Mr. Obama: that he is misusing his executive authority.

Amanda C. Leiter, a law professor at American University, said the case might have only a modest impact, because the administration would retain other regulatory tools should its approach be rejected.
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“It is far more important as a matter of optics than of actual legal consequences,” she said. If the government loses, she said, “it would be painted as another situation in which the Obama administration has overreached against the public will.”

Briefs filed in the Supreme Court by business groups and Republican lawmakers pressed that theme, one that hewed closely to criticism of the administration’s delays in carrying out the Affordable Care Act, its decision not to defend the Defense of Marriage Act in court, and its tolerance of state marijuana laws in Colorado and Washington.

A brief from Representative Michele Bachmann of Minnesota and other House Republicans said the regulations under challenge were “an intolerable invasion of Congress’s domain that threatens to obliterate the line dividing executive from legislative power.”

The brief added that the regulations were “perhaps the most audacious seizure of pure legislative power over domestic economic matters attempted by the executive branch” since President Harry S. Truman tried to take control of the nation’s steel mills during the Korean War.

The administration and environmental groups responded that the Clean Air Act was a broad grant of authority to the executive branch that allowed sensible tailoring of its statutory text by the Environmental Protection Agency to address new threats to the environment.

“The E.P.A. determined,” Solicitor General Donald B. Verrilli Jr. wrote in his brief to the Supreme Court, “that greenhouse gas emissions endanger public health and welfare in ways that may prove to be more widespread, longer lasting and graver than the effects of any other pollutant regulated under the act.”

The case that will be heard on Monday involves interlocking judicial decisions, statutory provisions and agency regulations complicated enough to make Rube Goldberg blush. But one aspect of it concerns the straightforward question of whether the Obama administration overstepped its constitutional authority by reinterpreting the Clean Air Act to avoid what it called “absurd results.”

The challenged regulations built on the Supreme Court’s 5-to-4 decision in 2007 in Massachusetts v. Environmental Protection Agency, which required the agency to regulate emissions of greenhouse gases from new motor vehicles if it found that they endangered public health or welfare.

The agency made such a finding, saying that “elevated concentrations of greenhouse gases in the atmosphere” pose a danger to “current and future generations,” and it set limits on emissions from new vehicles. (Mr. Obama’s announcement on Tuesday calling for new regulations to reduce carbon emissions from heavy-duty trucks was also based on the 2007 Supreme Court decision and the agency’s finding.)

The agency also issued regulations addressing greenhouse gas emissions from stationary sources like power plants. While acknowledging that the relevant provisions of the Clean Air Act fit such emissions imperfectly, the agency said the law nonetheless compelled it to require permits.

States and industry groups challenged the various regulations on many grounds, with the U.S. Chamber of Commerce calling them “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency.”

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit unanimously rejected all of the challenges, some on the merits and some on the ground that the parties before the court lacked standing to pursue them.

When the full appeals court declined to rehear the case, Judge Brett M. Kavanaugh dissented, and he identified the ground that would turn out to interest the Supreme Court. He said the agency had gone astray in revising the text of the statute.

“The task of dealing with global warming is urgent and important,” Judge Kavanaugh wrote, but it is primarily one for Congress to address. “The framers of the Constitution,” he added, “did not grant the executive branch the authority to set economic and social policy as it sees fit.”

The agency said its regulation of tailpipe emissions also required regulation of emissions from stationary sources under two permitting programs. The Clean Air Act says those programs cover all sources that can annually emit 100 or 250 tons of the relevant pollutant, a threshold that works tolerably well for conventional air pollutants like lead and carbon monoxide. But that threshold, applied to greenhouse gases, which are emitted in far greater amounts, would require the regulation of millions of sources of pollution.

All sides agree that requiring permits at the statutory thresholds would impose enormous burdens. “We’d be regulating mom-and-pop stores,” said Peter S. Glaser, a lawyer for the Washington Legal Foundation, which filed a supporting brief opposing the regulations.

Applying the law as written would increase the number of covered sources under one program from fewer than 280 to more than 80,000, reaching commercial and residential sources and subjecting them to expenses averaging almost $60,000, according to the appeals court. A second program would reach six million sources, subjecting them to expenses of more than $20,000 each. The cost of the programs would rise to $21 billion from $62 million.

The agency said Congress could not have intended such an “absurd result.” Its solution was to raise the statutory emissions threshold to 75,000 to 100,000 tons per year, thus reaching far fewer facilities. This was, Mr. Verrilli told the justices, a permissible exercise of discretion and one subject to tightening over time.

Texas and other states challenging the agency’s actions acknowledged that the higher thresholds resulted in less regulation, but told the appeals court that this proved only that the E.P.A. was “acting as a benevolent dictator rather than a tyrant.”

The Supreme Court considered nine petitions seeking review of the appeals court’s decision on many grounds, and it accepted six of them. But it limited the issue it would consider to whether the agency “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.” Among the cases accepted for review was Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146.

The question was narrow, and it appeared spurred by Judge Kavanaugh’s dissent. Environmental groups said they were pleased that the court had not questioned the agency’s finding that greenhouse gases pose a danger, or that it can regulate tailpipe emissions. They added that the agency has other tools to regulate stationary sources should it lose in the pending case.

The case has divided the states along predictable lines. A Supreme Court brief filed by Texas and a dozen other states called the challenged regulations “one of the most brazen power grabs ever attempted by an administrative agency,” while a brief filed by New York and 14 other states said the agency’s “gradual transition” to more comprehensive regulation was “a reasonable and temporary accommodation to certain practical implementation problems.”