Supreme Court to decide if EPA can make laws without approval of Congress

A Carbon Reckoning

The Supreme Court will hear a crucial case about EPA overreach.

The Obama Administration's Environmental Protection Agency has spent the last few years stretching its legal authority, and now it will have to defend its actions before the Supreme Court. On Tuesday, the Justices agreed to review how far the agency can go in regulating greenhouse gases under the Clean Air Act.

In Utility Air Regulatory Group v. EPA, the Court consolidated six cert petitions and will consider a single legal question: Does the EPA's authority under the Clean Air Act to regulate greenhouse gas emissions from "mobile sources" like cars also apply to emissions from "stationary sources" like power plants? To put it another way: Can the EPA make up the rules as it goes along?

This story started in 2004, when environmentalists sued to force the EPA to regulate CO2, even though the Clean Air Act never defined it as a pollutant. The Justices nonetheless ruled 5-4 (Massachusetts v. EPA, 2007) that the agency could do so for mobile sources such as cars under Title II of the Act. Gentleman, start your regulatory engines.

The Obama EPA immediately began to stretch that logic to apply to power plants and other stationary sources with a series of 2009 rulemakings. Those sources are covered under a separate provision of the Clean Air Act's Title 1, which includes complex federal permitting.

When Congress wrote the Clean Air Act, it created numerical thresholds specifying that the government could only start regulating after a plant was shown to be putting out more than 100 tons a year of a pollutant. Congress had in mind traditional pollutants like sulfur dioxide or ozone, but in the case of greenhouse gases like carbon dioxide 100 tons a year can be reached by 40 lawyers breathing. (OK, maybe a few more.)

By the EPA's own estimates, applying that 100-ton threshold to greenhouse gases would require some six million buildings to get environmental permits, including such grand polluters as churches and farms. Recognizing that such a rule would create "absurd results" like shuttering the entire economy, the EPA rewrote Congress's numbers and adjusted the threshold to 75,000 tons from 100 tons. EPA's clear political purpose was to escape a large political backlash to its new rules by unilaterally limiting their reach.

The EPA says that its rewrite is no big deal, and that plaintiffs should have no standing to sue since the agency was doing everyone a favor by lifting the thresholds. But regulatory agencies don't have the power to rewrite laws on their own without the authority granted by Congress. All the more so when that rewrite is intended to limit political accountability for a rule that could cost the economy $300 billion to $400 billion a year.

Parties to the suit include a handful of states that have been at the forefront of fighting the Obama Administration's regulatory overreach. Texas and 11 other states have taken a stand together, while Alaska joined a brief with the U.S. Chamber of Commerce. State attorneys general have challenged the Administration's agenda on everything from ObamaCare to the plan to get rid of the Yucca Mountain waste depository. We're glad to see the Court stepping into the melee.