Analysis: Obama climate agenda faces Supreme Court reckoning
Author: Lawrence Hurley and Valerie Volcovici
U.S. President Barack Obama runs to greet well-wishers upon his arrival in Newport News, Virginia February 26, 2013.
Photo: Kevin Lamarque
With a barrage of legal briefs, a coalition of business groups and Republican-leaning states are taking their fight against Obama administration climate change regulations to the U.S. Supreme Court.
The U.S. Chamber of Commerce and other industry groups, along with states such as Texas and Virginia, have filed nine petitions in recent weeks asking the justices to review four U.S. Environmental Protection Agency regulations that are designed to cut greenhouse-gas emissions.
If the court were to take up any one of the petitions, it would be the biggest environmental case since Massachusetts v. EPA, the landmark 2007 decision in which the justices ruled that carbon dioxide is a pollutant that could be regulated under the Clean Air Act.
The court's decision on whether to take up any of the petitions, likely to come in October, could help shape or shatter the administration's efforts to solidify its climate change agenda before President Obama leaves office in 2017.
The EPA regulations are among Obama's most significant tools to address climate change after the U.S. Senate scuttled in 2010 his effort to pass a federal law that would, among other things, have set a cap on greenhouse gas emissions.
The petitions give the court various options for cutting back on, or even overturning the 2007 ruling, according to John Dernbach, a law professor at Widener University in Pennsylvania, who represented climate scientists in the 2007 case.
If the court decides to hear any of the petitions, it "would be opening a really big can of worms," he said.
The rules being challenged apply to a cross-section of polluters, from vehicles to industrial facilities. A federal appeals court in Washington last summer upheld the rules, which were issued by the EPA under the Clean Air Act.
The EPA is a federal agency responsible for protecting human health and the environment.
The number of petitions filed is unusually large.
The court only had five petitions to choose from in 2011 when it chose to review Obama's landmark healthcare law, which various states and business groups opposed. Lawyers involved in the process say the petitions, which raise different arguments, are not part of a centrally-coordinated plan, and that parties that joined the same petition are working closely together.
The petition filed by Texas, for example, was joined by 12 states. The U.S. Chamber of Commerce's brief was joined by the American Farm Bureau Federation and Alaska. Other business-oriented groups either filed their own briefs or joined another organization's brief.
COMPLAINTS OVER ECONOMIC BURDEN
Those challenging the rules all cite the economic burden of the regulations and note that the EPA is making plans to regulate power plants. "The extension of these rules will cost tens, perhaps hundreds, of billions of dollars," lawyers for the conservative Southeastern Legal Foundation said in its petition.
The administration has a May 22 deadline to file its response to the petitions but is expected to ask for an extension, meaning the court's decision on whether to take up one or more of the petitions is likely to come no sooner than October, the start of a new term after the its summer break. The Justice Department declined to comment on the litigation.
The claims made in the petitions vary from broad attacks on the concept of regulating greenhouse gas emissions under the Clean Air Act to more nuanced arguments about the specific language of that law.
Some of the challengers specifically ask the court to consider overturning Massachusetts v. EPA. They point out that the Clean Air Act, which passed in 1970, was not designed to tackle climate change. At least one brief, by the state of Virginia, challenges the EPA's evaluation of the climate change science that underpinned its decision to regulate greenhouse gases. Others contend the Supreme Court's holding in the 2007 ruling, which specifically addressed automobile emissions, did not give the EPA the authority to issue greenhouse gas rules that affect such a broad cross-section of the economy.
If the justices were to accept one of these broad petitions and side with challengers, they could make it impossible for the EPA to regulate greenhouse gases and could open the door to attacks on the air pollution regulations the agency has formulated for 30 years, according to Dru Stevenson, a law professor at the South Texas College of Law.
"It will probably go into the textbooks as Massachusetts v. EPA Part Two," he said.
Most experts believe such broad action by the court is unlikely, though they say there is a chance the justices could take a case on narrower grounds. They point to a petition by the American Chemistry Council which does not attack the science behind climate change but questions whether the EPA had the authority to regulate greenhouse gas emissions under a specific program that issues permits for new or modified polluters, such as power plants and steel mills.
A ruling reversing the EPA on the permit program would be a significant win for industry interests. "It would be a big improvement over the immediate problem of oppression by permit," said Eric Groten, a lawyer with Vinson & Elkins who represents the industry-backed Coalition for Responsible Regulation, which has filed its own brief.
However, such a ruling would leave the architecture of greenhouse gas regulation in place, which - from the industry perspective - "would do little to prevent other abuses," Groten said. As the American Chemistry Council noted in its petition, under its interpretation of the law, the vast majority of greenhouse gas emitters currently subject to the rules would still be covered by them.
Some observers say the flood of petitions may not be enough to get the court's attention. The justices "have a fair amount of confidence" in the federal appeals court in Washington, which handles regulatory cases all the time and has some expertise in the area, according to Jonathan Adler, an expert on regulatory law at Case Western Reserve University School of Law.
The Supreme Court, which hears less than one percent of the petitions that are filed, is generally reluctant to wade into highly technical government regulations, especially when it comes to the Clean Air Act. Air quality regulations focus on detailed scientific analysis of data on various pollutants in the air and their relative impact on public health.
"It's very convoluted," said Daniel Farber, an environmental law professor at the University of California, Berkeley School of Law. "The court typically doesn't like all this complicated stuff."
The court has only heard two Clean Air Act-specific cases since 2005, including Massachusetts v. EPA, although in 2011 it heard a climate change-related case.
In contrast, it has heard seven cases on the Clean Water Act, a law that environmental lawyers say is less complex, during the same period.
There is little sign the EPA is concerned about an adverse ruling. The agency is now looking at pushing ahead with regulating carbon dioxide from new and existing power plants, which account for nearly 40 percent of carbon dioxide emissions in the United States.
If the EPA doesn't act, noted David Doniger, climate and clean air policy director for the Natural Resources Defense Council, it would leave itself vulnerable to legal attack from environmental groups.
"The legal pathway is quite clear and the need is there for the administration to move forward quickly on power plants," he said.
(Reporting by Lawrence Hurley and Valerie Volcovici; Editing by Amy Stevens, Howard Goller, Mary Milliken and Paul Simao)