In the News

Opponents of the Environmental Protection Agency’s proposed carbon dioxide standards for newly built power plants are looking to federal statutes beyond just the Clean Air Act to base legal cases. Challenges are likely to focus on whether the agency violated the Energy Policy Act of 2005 when it proposed a standard for new coal-fired power plants that would necessitate the use of carbon capture systems. Industries that oppose the performance standards already have raised the objection, and a House committee launched an investigation into whether the proposed rule violates the law. “My guess is that the industry is going to throw every possible legal argument into the mix on this,” Michael Livermore, an associate professor of law at the University of Virginia School of Law and a senior advisor to the Institute for Policy Integrity, told Bloomberg BNA. “It’s kind of a no holds barred, every argument, don’t pull any punch kind of approach.”

The country should shift from “command and control” mechanisms like the renewable fuel standard to a cap-and-trade system to reduce greenhouse gas emissions from the transportation sector, New York University’s policy think tank said yesterday. In a report, the Institute for Policy Integrity said that a cap-and-trade system would represent the lowest-possible cost for emissions reductions and guarantee continued reductions. EPA could put such a system in place for the transportation sector without Congress’ help, the NYU analysis found. “EPA must look to new regulatory tools to drive further cuts in transportation emissions,” NYU legal experts Jack Lienke and Jason Schwartz wrote in the analysis.

The seven scientists behind the article, due to be published 10 April, conclude that the reports by the UN climate panel serve an important function in setting the agenda for climate research. Yet the most important role of the Intergovernmental Panel on Climate Change (IPCC) is to inform the global political discussion on how the harm caused by climate change should be handled.

Monday, the Supreme Court of the United States heard oral argument on a case concerning the ability of the U.S. Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act. At first glance, this case deals with only a narrow technical legal issue. Does the term “any air pollutant” under one of the Clean Air Act’s many programs mean any air pollutant regulated by the Clean Air Act, as maintained by the U.S. Environmental Protection Agency and by the opinion of the United States Court of Appeals for the D.C. Circuit upholding this interpretation? Or does it mean only a subcategory of such pollutants, as maintained by the regulation’s challengers?

Monday morning, the high court heard arguments over whether the Environmental Protection Agency can use the Clean Air Act to curb carbon dioxide emissions from some “stationary sources” of pollution, such as existing factories, oil refineries and power plants. After the arguments, environmental groups predicted the court will uphold the EPA’s actions under the Clean Air Act. “I think it’s much more likely that when they try to get out an opinion, they’ll have to hold up what EPA did,” says David Doniger, an attorney for the National Resources Defense Council. New York University law professor Richard Revesz offered a similar opinion. “The regulations will be upheld,” he says. “Congress designed a program specifically for this [with the Clean Air Act]. Once they struggle with all the back and forth, a majority of them [the justices] will come to see that.”

President Barack Obama’s four appointees to the U.S. Court of Appeals for the District of Columbia Circuit are well-regarded attorneys with extensive careers in U.S. Supreme Court appeals and civil rights cases, but their legal backgrounds offer minimal insight into their approach to environmental law. Legal observers will be closely watching the four new additions—Judges Patricia Millett, Cornelia Pillard, Sri Srinivasan and Robert Wilkins—over the coming months as they hear oral arguments and issue decisions in air, mining and other environmental cases. On the administrative area or environmental area, we don’t see a lot of past work that these guys have done,” Michael Livermore, an associate professor at the University of Virginia School of Law and senior adviser at the Institute for Policy Integrity, told Bloomberg BNA.

In one of the most high-profile environmental cases of the Supreme Court term, the justices—with Justice Alito recusing himself—will consider on December 10 the EPA’s 2011 rule for air pollution that drifts across states lines. The EPA asked the court to take the case after the U.S. Court of Appeals for the D.C. Circuit struck the rule down in August 2011. Policy Integrity director Richard Revesz expects the D.C. Circuit ruling will be reversed. “I don’t think it’s going to be one of those typical 5-4 or in this case 4-4 cases on ideological lines.” Meanwhile, down the street from the Supreme Court, the D.C. Circuit will hear a broad challenge from industry groups and several states to the EPA’s December 2011 mercury and air toxics standards for power plants.

EPA is on the right track in its effort to reduce greenhouse gas emissions, but on the wrong track in its insistence on using command-and-control style regulations and hand-outs to specific industries to do so. Instead of a biofuels mandate or any other command-and-control regulation, EPA should select the optimal goal—a lower level of carbon emissions from vehicle fuels—and let the market decide how best to get there. Set American ingenuity and industry to the task of cleaning up climate-change-causing pollution and we will certainly reach our goal.

The U.S. Supreme Court upheld the EPA’s fundamental Clean Air Act authority to regulate greenhouse gases when it agreed to hear only a narrow challenge to the agency’s various greenhouse gas regulations, panelists said at a forum. Environmental groups and the EPA “got 98 percent of what they wanted” from the Supreme Court’s decision, Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, said at an Oct. 30 forum sponsored by his organization.

When Clean Air Act amendments were enacted in 1990, the new statutory language contained a rare glitch. Two different and contradictory amendments to Section 111(d) — one from the House, the other from the Senate — were never reconciled in conference, but instead passed both chambers and both became enrolled into law. Michael Livermore, senior adviser at New York University’s Institute for Policy Integrity, said the courts are likely to defer to the EPA on its interpretation of the statute, rather than try to mine the law’s language for congressional intent.