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The EPA and the Supreme Court Fight Climate Change

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federal government's power to regulate greenhouse gases
Photo: Getty Images; Illustration by Bloomberg View

Oct. 16 (Bloomberg) -- Even as it decided yesterday to critically examine one of the weapons that the Environmental Protection Agency uses in its fight against climate change, the U.S. Supreme Court stood firmly behind the Obama administration’s basic plan: using the EPA to regulate greenhouse gases as harmful pollutants.

That’s because the court refused to consider a broader challenge to the EPA’s fundamental authority in this area. No matter how the court rules on the question it has taken up, it will not threaten President Barack Obama’s strategy of placing broad limits on carbon pollution from new and existing power plants.

Given that these plants, many of which are coal-burners, produce 40 percent of the U.S.’s carbon dioxide emissions and a third of its greenhouse gases, this is good news. The EPA is on a schedule to finish that task well before Obama leaves office.

The question the Supreme Court will address is a relevant one, to be sure. It applies to a second strategy for regulating pollution -- not through national industrywide standards, but through case-by-case reviews of power plants, refineries, factories and other “stationary” sources of greenhouse gases. The court will address whether high levels of carbon emissions should automatically trigger such reviews, based on the EPA’s determination that greenhouse gases threaten human health and welfare.

The EPA has said high levels should prompt a review. But the American Chemistry Council, an industry trade association, and others, including a federal circuit court judge, have argued that they shouldn’t. If the court agrees they shouldn’t, the EPA may still be able to use the permitting process to regulate greenhouse-gas emissions whenever a review of a given plant or factory is triggered because the level of another pollutant is over the limit.

This would enable regulators to press some large industrial emitters, when they expand or rebuild, to use new technology to limit greenhouse gases even beyond any industrywide standards.

The worst outcome would be a broader ruling that would stop the EPA from using the permitting process to regulate greenhouse gases at all. Even if that happens, however, the EPA’s current project of coming up with national standards means that factories and power plants will not be allowed to simply emit unlimited amounts of greenhouse gases.

By restricting its review to this permitting question, the Supreme Court has affirmed the EPA’s judgment that greenhouse gases are a threat to humanity, and therefore within the agency’s power to regulate. The agency has already proposed carbon limits for new power plants and is scheduled to offer a plan for existing plants by next summer. It should now move forward at full speed to put them in place.

To contact the Bloomberg View editorial board: view@bloomberg.net.

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