Utility Air Regulatory Group v. E.P.A.
On June 23, 2014, the United States Supreme Court released its decision in Utility Air Regulatory Group v. E.P.A. Lyle Denniston, at SCOTUSblog, reported that the EPA “mostly” won, with a 7 to 2 vote in favor of the agency’s ability “to impose air pollution control strategy on many of the power plants and other fixed sources of greenhouse gases” (GHG). On the other hand, “industry” could claim a victory in that the Court voted 5-4 to reject the EPA’s broadest view of its ability to regulate GHG emissions. (The EPA proposed its initial guidelines on cutting carbon pollution from existing power plants on its website on June 2, 2014.) Although the agency was left with the authority to regulate most of the sources it had sought to regulate, Denniston points out that lead opinion criticized the EPA’s attempt to expand its power beyond what the statute itself intended. Only Chief Justice Roberts and Justice Kennedy joined in Justice Scalia’s lead opinion. Justices Alito and Thomas wrote a separate opinion, as did Justices Breyer, Ginsburg, Kagan, and Sotomayor.
The Wire reports that “[t]he mixed, complicated opinion is producing split results from the media, too.” The National Review Online also provided “same day” analysis of the case.
Perhaps unsurprisingly, the New York Times announced victory for the EPA, while Fox News reported a setback for the EPA. Our own CWRU Law professor Jonathan Adler, who participated in an amicus brief cited in the Court’s opinion, posted a short summary of the decision on June 23. Upon further review of the decision, Prof. Adler said it was “simultaneously very significant and somewhat inconsequential.” He and other constitutional and administrative law scholars will no doubt spell out the legal winners and losers in more detail in the following days, weeks, months, and (possibly) years. The more in-depth scholarship will likely show up first in SSRN or our Scholarly Commons.
Section 111 of the Clean Air Act, as codified, is available from the LII. The federal appellate decision, 744 F.3d 741 (2014), is available via Google Scholar. Massachusetts v. EPA, 127 S. Ct. 1438 (2007), which held that the EPA has statutory authority to regulate GHG emissions from new motor vehicles, is also available via Google Scholar.
Brian Keaveny and Paul Miller. Compliance with Flexibility: State Approaches to Reduce GHG Emissions from Existing Power Plants. (Air & Waste Management Association, June, 2014).
Jack Lienke and Jason A. Schwartz. Pollution from Existing Power Plants: The State of the Debate. Policy Brief #14. (Institute for Policy Integrity, May, 2014).
Thomas I. McGarity. EPA at Helm’s Deep: Surviving the Fourth Attack on Environmental Law. 24 Fordham Envtl. L. Rev. 205 (2013).