The Supreme Court issued its big decision in the Utility Air Regulatory Group v. Environmental Protection Agency (UARG v. EPA) case last week, and some headlines emphasized that the Court split 5-4 to invalidate some portions of EPA’s climate change regulations. Looking more closely, though, Justice Scalia’s comments from the bench tell the real score: “It bears mention that EPA is getting almost everything it wanted in this case.” The headlines may report this as a 5-4 rebuke of EPA, but EPA really won the case 83-3.
But wait—there are only 9 Justices on the Supreme Court, so how could EPA win by 83-3? Well, like trying to understand the many permutations by which the USA could advance from the Group round to the round of 16 after tying Portugal in the World Cup, keeping score in administrative law is a bit like navigating those icebergs I saw last week in Glacier Bay National Park: 90% of what matters is below the surface. So let’s look more closely.
The EPA regulations at issue in the UARG case were promulgated following EPA’s “endangerment” finding that carbon dioxide and five other greenhouse gases (GHGs) were pollutants under the act; this was almost explicitly required by the Supreme Court’s 2007 decision in the Massachussetts v. EPA case. The endangerment finding then triggered regulation of those GHGs for mobile sources of pollution, such as cars and trucks. The EPA claimed that regulation of those GHGs for mobile sources then triggered independent regulation of GHGs for stationary (i.e., non-mobile) sources under two other parts of the Clean Air Act (CAA) even for sources that were not already otherwise subject to regulation under the CAA. Finally, the EPA then “tailored” the regulation so that it would only apply to much larger sources of GHG emissions.
UARG rejected the EPA’s attempt to “trigger” regulation of GHGs on sources that are not already otherwise subject to regulation under the CAA. However, these sources only account for 3% of GHG emissions from stationary GHG sources. By a 7-2 vote, moreover, the Court agreed that EPA could regulate GHG emissions from those sources that were otherwise already subject to the regulatory scheme in question—and the latter sources account for a whopping 83% of GHG emissions from stationary GHG sources that are affected under these parts of the CAA. UARG also rejected the EPA’s attempt to limit its regulations only to much larger sources of GHG emissions (which I expected), but only those larger sources are subject to the existing regulatory system.
Therefore, EPA can now effectively regulate 97% of the GHG emissions that it originally sought to regulate under the regulations (83% divided by the 86% that the regulations would have covered equals 97%). I think most of us would be happy with getting 97% of what we want, so the EPA is pretty pleased despite “losing” by a 5-4 vote on two aspects of its regulation. Moreover, the Supreme Court never even considered challenges to some of the EPA’s earlier rules. The EPA is therefore well on its way to regulating GHG emissions under the existing CAA.
However, there are still some subtle but important risks in the UARG decision for EPA’s more ambitious regulatory proposals. I’ll explore those as EPA finalizes those regulations.