On Monday, the United States Supreme Court largely ruled that the EPA could regulate greenhouse gases from stationary sources such as power plants. In legal circles, there is much commentary that this is a mixed decision and that the EPA may have won this battle, but they should expect more battles in the future and that they may eventually lose the war. A simple look at the end of the decision where the Justices fall may explain the complexity of this decision:
Justice Scalia announced the judgment of the Court and delivered an opinion, Parts I and II of which were for the Court. Chief Justice Roberts and Justice Kennedy joined the opinion in full; Justices Thomas and Alito joined as to Parts I, II-A, and II-B-1; and Justices Ginsburg, Breyer, Sotomayor and Kagan joined as to Part II-B-2. Justice Breyer filed an opinion concurring in part and dissenting in part in which Justices Ginsburg, Sotomayor and Kagan joined. Justice Alito filed an opinion concurring in part and dissenting in part in which Justice Thomas joined.
That is certainly a mouthful. At issue were EPA rules designed to regulate greenhouse gases from stationary sources such as power plants, refineries and factories. The EPA interpreted the Clean Air Act to authorize them to do so in light of previous findings and authority under a previous Supreme Court decision, Massachusetts vs. EPA. That ruling allowed the EPA to regulate automobile emissions of greenhouse gases.
This most recent decision lends legal cover to the EPA to extend that authority to stationary sources to the extent they can already regulate other air pollutants at such sources. That, in a nutshell, is what all that agreeing to different parts, concurring and dissenting means. Had the EPA prevailed in full, as the liberal wing of the Court voted, their reach would have extended to lower level emitters of greenhouse gases like apartment buildings, bakeries, and the like. As Scalia notes, instead of gaining regulatory control over 86% of greenhouse gases, they got 83%.
The problem is twofold. First, it behooves this writer to see how the EPA can determine that a naturally occurring gas like carbon dioxide- a compound essential for life on this planet in the first place- could be an “air pollutant.” The connection is so strained as to induce laughter. For example, as predicted, Obama has recently taken to surrounding himself with children and claiming these regulations will improve the air quality they breathe and that cases of childhood asthma will decrease.
This stems from the Massachusetts vs. EPA case a few terms back which stated that when the EPA made a finding that something was a “pollutant” that could affect public health, they could regulate. The original Clean Air Act specified six pollutants, but even the least green among us can certainly agree that there are compounds not specified that are clearly air pollutants. Sulfur dioxide, which produces acid rain, is one example. Before making a determination, however, the EPA must make its case to classify something as a “pollutant” based upon the best scientific evidence at the time. We now know that despite the slur of “climate change denier” or “flat-earther” that that science was not exactly “the best.”
Thus, because an administration changes and the incoming one worships at the altar of Al Gore and Thomas Mann, suddenly what was not an air pollutant becomes one. The original Massachusetts case was decided when Bush was President and it was instigated by Massachusetts against Bush’s EPA to force regulation of greenhouse gases from motor vehicles. Bush fought the state and lost, but his EPA did nothing in this area. Instead, Obama’s EPA issued regulations on motor vehicles. That Court, in a 5-4 decision, ruled that the wording of the CAA granted the EPA this power. But because the wording of a statute grants an executive department agency certain powers does not infer or compel that agency to actually use that power. The government’s position was that the jury was still out on man-made carbon dioxide levels and their contribution to climate change. They phrased it as “deferring” judgment rather than compelled action. Regardless, these regulations were not promulgated until 2010 under Obama.
The second point is that even though the 7-2 majority in the present case may have rebuked the EPA and warned that they will not stand idly by as that agency asserts more regulatory power not found in the Clean Air Act, these are mere words at this point. As Scalia noted, the EPA got most of what it wanted- all except 3%. Roberts in his concurrence noted that the Court cannot sit by while the EPA has the potential authority to regulate a wide swath of the American economy. Yet, that is what they did. Only Alito and Thomas voted to put the brakes on the EPA- now!
And there lies the main problem with this ruling. It allows the EPA to now regulate power plants, refineries and mid-level to large factories. I am sure the owners of bakeries, apartment buildings and smaller businesses are wiping the sweat off their brows. But, in terms of greenhouse gas production and a percentage of the US economy, they represent a small portion. The Heritage Foundation estimates that 600,000 jobs will be lost, including 270,000 in the manufacturing sector and that coal mining jobs will decrease by 30%.
Obama and company like to talk about income inequality. Here is an estimate that worsens that inequality- the average family of four can expect $1,200 per year LESS in expendable income as the cost of heating one’s home and electricity increases. Equally important, in what can best be described as a stagnant economy, by the end of 2023, these regulations are expected to cost the American economy $2.23 trillion in lowered GDP. In short, this is nothing but a backdoor energy tax on every American citizen which is something Obama could not openly achieve even in a Democratic-controlled House and Senate. In fact, in the House there was probably more bipartisan support for prohibiting the EPA from regulating greenhouse gases.
Thus, I look at all this commentary regarding a judicial rebuke of the EPA with a hint of laughter. Already, the EPA and Obama administration have claimed victory here thus allowing the EPA to continue to become, in effect, an environmental Gestapo. It is ironic that today Obama somewhat acknowledges that while carbon dioxide emissions have decreased from the United States and that China and India have surpassed us, these regulations signal to the world that we are serious about climate change. He lives in a fantasy world where he believes that China, India and other emerging economies will follow suit and limit greenhouse gas emissions. Well, America “leading by example” under Obama hasn’t worked out too well in Iraq…or the Ukraine…or Egypt…or Libya…or Syria…or Afghanistan…or Iran…or Pakistan. Perhaps that is how Obama intends to solve the problem of income inequality- lower the American standard of living to equalize it with that of the developing world.