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NAM: Supreme Court hears manufacturers’ challenge to the EPA’s greenhouse gas regulations

In a press release, the National Association of Manufacturers (2/24) said it and other associations “argued against the Environmental Protection Agency’s (EPA) greenhouse gas regulations for stationary sources before the US Supreme Court.” NAM Senior Vice President and General Counsel Linda Kelly said, “Manufacturers have long argued that the EPA’s greenhouse gas regulations for stationary sources are some of the most costly, complex and harmful they have ever faced. These regulations threaten manufacturers’ global competitiveness by imposing harsh new permitting requirements on millions of manufacturing facilities, farms, energy providers and other stationary sources, negatively impacting every aspect of our economy.” On Monday, Kelly also said, “the highest court in the land heard that message. While the Supreme Court’s decision will be a critical moment for manufacturers, the NAM—through the Manufacturers’ Center for Legal Action—will continue to fight against the EPA’s overly aggressive regulatory agenda.”

Supreme Court Appears Divided On EPA Emissions Rule. The AP (2/25, Sherman) reports that in a hearing yesterday on the Environmental Protection Agency’s rule for carbon emissions, the US Supreme Court “appeared divided,” with the “liberal justices” appearing to be “comfortable” with the EPA action, while “conservative members” were “skeptical of the EPA’s authority.” Senate Minority Leader Mitch McConnell (R-KY), who often refers “to the administration’s assault on the coal industry in Kentucky and elsewhere” in his re-election campaign, was in the courtroom watching. Justice Anthony Kennedy is said to be “the probable decisive vote.” Justices made clear that a ruling in the case “would not impede” the agency’s emission standards for new and existing power plants. Justice Alito asked Solicitor General Donald Verrilli Jr., to produce an example of an agency acting as the EPA did in developing its own standard for applying limits on greenhouse gases despite the Clean Air Act having a specific standard for pollutants.

McClatchy (2/25, Doyle, Subscription Publication) reports the justices “seemed split down the middle” with “conservatives” and Justice Kennedy sharing “the skepticism of Texas Solicitor General Jonathan Mitchell,” in saying to Verilli, “I couldn’t find a single precedent that strongly supports your position.” That “flat-out declaration,” by Kennedy “suggested an eventual ruling against the EPA,” as Chief Justice John Roberts Jr., and Justices Antonin Scalia and Samuel Alito “also sounded skeptical,” while Justice Thomas did not speak. Meanwhile, the “four Democratic appointees were more sympathetic to the EPA rules,” with Justice Sonia Sotomayor asking, “Why shouldn’t we defer to the agency?”

The New York Times (2/25, Liptak, Subscription Publication) reports that Justice Elena Kagan spelled out a “conundrum” in that the Clean Air Act “seemed to require” the regulation of greenhouse gases while setting “the emission thresholds so low that even schools and small businesses would be covered.” The EPA decided to resolve that by issuing a new threshold for greenhouse gases, and the court appeared to be “divided” over whether that move was “a sensible accommodation or an impermissible exercise of executive authority.” Justice Kennedy’s statement that he “couldn’t find a single precedent that strongly supports” the EPA’s decision, “did not bode well for the agency.” Justice Alito agreed with Justice Kennedy that the EPA’s action “was without precedent.”

Bloomberg News (2/25, Stohr, Drajem) said that the court may follow a suggestion by Chief Justice Roberts that the EPA might achieve its objectives by establishing “greenhouse-gas limits on facilities that already must get a permit for other types of emissions.” Justice Alito asked Verrilli if he could produce an example of an agency having “taken a statute with numbers and has crossed them out and written in the numbers it likes?”

The Washington Post (2/25, Barnes) reports that “liberal justices seemed ready to defer” to the EPA, while “conservative justices were skeptical” of the action. Justice Stephen Breyer suggested that the case did not matter, saying, “It’s a question of whether they do exactly the same thing under one provision or another provision.” Justice Kagan said that the EPA appeared to think it had “complete discretion to do whatever it wants, whenever it wants,” but also suggested it “was simply trying to identify the facilities with the biggest problem.”

USA Today (2/24, Wolf) writes that the outcome “is likely to have only limited impact…because the government has other ways of regulating greenhouse gas emissions from stationary sources.”

The Wall Street Journal (2/25, Bravin, Kendall, Subscription Publication) notes that the EPA will be able to regulate 86 percent of greenhouse gas emissions from stationary sources if the justices rule in the agency’s favor, and 83 percent of those emissions if the court rules against it.

Also covering the story are the Dallas Morning News (2/25, Lindenberger), the Christian Science Monitor (2/25, Richey),Reuters (2/25, Hurley), the Los Angeles Times (2/25, Savage), National Journal (2/25, Geman, Subscription Publication), The Hill (2/25, Barron-Lopez) “E2 Wire” blog, Washington Times (2/25, Dinan), US News & World Report (2/24, Neuhauser) and other media sources.

WPost Columnist Says Hearing Went Badly For Obama Administration.

Dana Milbank, writing in his column in theWashington Post (2/25), said the case “went badly for the Obama administration,” as Justice Kennedy “made clear that he agreed with the conservatives,” while “even some of the liberal justices voiced skepticism about the Justice Department’s position.” He says that while the case may not have much practical effect regarding the regulation of greenhouse gases, it could “highlight the inherent flaw in President Obama’s ‘pen and phone’ strategy.”

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