Last week the US Supreme Court (SCOTUS) ruled the EPA can limit greenhouse gas emission’s from large producers but took issue with the EPA regarding how it does so. The justices said in a 5-4 vote that the EPA cannot “tailor” the federal Clean Air Act to regulate greenhouse gases from power plants, refineries and factories. EPA’s rewriting of the Clean Air Act to fit its own agenda has been a source of consternation to many states, especially Texas, although few have noticed or cared about the rationale or reasoning for the objection’s, until now.
Regarding the EPA “tailoring rule”, Justice Antonin Scalia said, “the EPA could not just rewrite the statute” to bring greenhouse gasses under a provision dealing with facilities that would increase the overall amount of air pollution.
Not only did EPA make substantive changes in lieu of Congress, they did so “tailoring” their new rules to affect only certain “violators” and exempting others assuming broad authority. No due process, no public comment period.
I remember when I was TCEQ Commissioner as a member of the US Clean Air Act Advisory Committee, then EPA Deputy Administrator Gina McCarthy addressed the committee and told us how the “tailoring” would work. When asked to include “Early Action Compacts” (attempts by local communities to address factors that lead to non-attainment status), she said although they were productive she could not consider the Compact’s beneficial results because they were “illegal under the Clean Air Act”. When asked about the “tailoring rule” being outside of the scope of the Clean Air Act, she said that simply, “I am in charge and this is how it is going to be”.
Question for me was never whether EPA can regulate greenhouse gasses, it was HOW they did it which was unproductive, unfair, costly and now the SCOTUS has ruled inappropriate.
The Clean Air Act (passed during the Nixon Administration) covers pollution at thresholds (some cases 100 tons-250 tons per year) intended to limit dangerous pollutant emissions from the worst polluters—not greenhouse gas (GHG) regulation. By choosing to use the Clean Air Act to limit carbon dioxide (declaring CO2 a pollutant of that caliber), EPA chose to utilize the wrong “regulatory tool” so it would not have to rely on new legislation to regulate CO2. EPA then “tailored” the Clean Air Act to include energy producers while exempting other CO2 producers.
Rather than constructing a way to increase pollutant controls within permitting methods, vetting costs & including public input, EPA did not want to do so via Congress or through a transparent rule making process. If left to Congress, the House of Representatives would surely force EPA to work toward regulations implemented by states, that hinge on balancing both jobs and the environment (EPA not mandated to consider cost).
EPA’s goal this whole time has been to control by fiat. They used broad discretion in interpreting the Clean Air Act to force acquiescence by all energy producing states to implement “tailored” rules, and utilize the Clean Air Act to get around congressional approval. According to the SCOTUS that is “rewriting” and “an agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”
If EPA want’s to ban coal or any other domestic fossil fuel production, convince Congress to implement a strategy to accomplish this. Don’t set up a myriad of “tailored” rules that exclude some and force others to pay for GHG. Force all GHG polluters, hospitals, schools, whomever to get regulated, and see how much it costs and the backlash. If its bad GHG, then it is not just the industrial polluter who should get penalized. But recognize that carbon dioxide is naturally occurring and emitted from many sources not just energy production.
Not sure what caught the eye of the US Supreme Court, but the way EPA chose to go about limiting emissions, the “how” it was done, went too far and the SCOTUS warned EPA that they too must consider the limits of the law and due process in limiting greenhouse gases.