About that 'Greenhouse Gas' Provision...

If you write a news story about a significant piece of legislation relying heavily on its proponents—or worse, your own ideological interests—you are likely to overstate their victory. That is precisely what the New York Times did when it contended recently that the misnamed Inflation Reduction Act explicitly [gave] the EPA the authority to regulate greenhouse gases:

When the Supreme Court restricted the ability of the Environmental Protection Agency to fight climate change this year, the reason it gave was that Congress had never granted the agency the broad authority to shift America away from burning fossil fuels.

Now it has.

Throughout the landmark climate law, passed this month, is language written specifically to address the Supreme Court’s justification for reining in the E.P.A., a ruling that was one of the court’s most consequential of the term. The new law amends the Clean Air Act, the country’s bedrock air-quality legislation, to define the carbon dioxide produced by the burning of fossil fuels as an “air pollutant.”

That language, according to legal experts as well as the Democrats who worked it into the legislation, explicitly gives the E.P.A. the authority to regulate greenhouse gases and to use its power to push the adoption of wind, solar and other renewable energy sources.

Hi! I'm a carbon-based life form!

Except it didn't. Nor did it  grant the EPA “the broad authority to shift America away from burning fossil fuels.” How did such a common compound on this planet—we are, after all, carbon-based life forms and exhale CO2 with every breath we release—come to be considered a pollutant anyway?

To understand the issue better, here’s a brief history showing judicial and administrative rulings that carbon dioxide (naturally emitted by oceans and land and relatively very little by humans) is a pollutant and the extent to which the EPA. can regulate its emission.

In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the Environmental Protection Agency has the authority to regulate  greenhouse gas (GHG) emissions if it determined that the emissions endangered public health. A few years later the EPA, acting under the Clean Air Act, determined that there were six gases that posed a danger to public health and welfare.

That determination was challenged in court and in 2014 the Supreme Court upheld only part of the EPA’s determination in Utility Air Regulatory Group v. EPA. The Court’s majority held that the agency had authority to regulate emissions from large stationary sources such as power plants, but had overstepped its authority when it tried to use the Clean Air Act to regulate smaller stationary sources. More important, the court held that the “air pollutant” language  referred to regulated air pollutants and not greenhouse emissions.

So am I!

The  next most consequential ruling on the Clean Air Act and the role of the EPA was the recent  West Virginia v. EPA decision, issued at the end of June, in which the court rejected an expansive reading of the EPA’s authority. A critical element in the majority opinion was that Congress never explicitly granted the EPA authority to regulate greenhouse gases. In an effort to get around the limitations imposed in that decision by the Supreme Court, however, the Biden administration tried to slip language into the Inflation Reduction Act in order to claim that they had now overcome that restriction on the EPA’s reach and legislatively permitted the agency to regulate greenhouse emissions (CO2) from power plants.

In what has become known as the “major questions doctrine,” the court has adopted a more stringent approach to how it interprets laws that gives much less deference to the views of experts at the federal agencies charged with implementing complex, dynamic regulatory programs designed to protect public health and safety... Roberts made clear that Congress could choose to pass more detailed legislation granting EPA the authority at the heart of the case if it wished.

The Inflation Reduction Act amends the Clean Air Act to add seven specific new programs to reduce greenhouse gases and provide funding to the states to develop their own plans. Taken together, these provisions go a long way to address Roberts’ concern that Congress has not spoken plainly enough about EPA’s authority to tackle climate change. But it falls short of granting EPA the authority to revive the generation shifting approach of the Clean Power Plan.

Me too!

Why didn’t it do so? Because it could not. To ram this bill through the Democrats used  the budget reconciliation provision and a bill passed this way must be “closely tired to spending, revenue and the federal debt limit—it cannot set broad national policy.” The Times, largely relying on the statements by the act’s advocates, thinks they succeeded, but more reasoned commentators dispute that, and I think they, not the NYT, are right. In particular the analysis by Professor Jonathan H. Adler is far more persuasive. The IRA, he writes:

does not grant the EPA new regulatory authority with regard to GHGs. Nor does it address the Supreme Court’s reasons for rejecting a broad view of EPA’s regulatory authority in West Virginia v. EPA. Nor is it quite accurate to say the IRA "amends the Clean Air Act . . . to define the carbon dioxide produced by the burning of fossil fuels as an 'air pollutant.'" Nothing in the IRA modifies the CAA's existing definition of air pollutant in Section 302 of the Act.

Yes, there are several section- specific mentions of greenhouse gases but the language used doesn't address the issues in the West Virginia case  Whether greenhouse gases are air pollutants never was a factor in that decision. Taking sharp issue with the NYT article, Adler notes,  “[I]t is suggested that because these provisions define greenhouse gases as a set of air pollutants, this makes clear that GHGs may be considered air pollutants under the Air, and this will be ‘a powerful disincentive to are lawsuits.’ Don’t bet on it.”

The point is that simply because something is defined as an “air pollutant” in one section of the Clean Air Act, it is not necessarily one under other of the Act’s provisions. The “definitional provisions in the IRA are “section-specific," not of general application so that GHGs may be air pollutants for  “some provisions,” but not all of the Act. Because this is so, Adler sees in the IRA no barrier to state challenges to EPA regulations of GHGs. He has a further criticism of the NYT article.

The story claims that the EPA’s 2009 conclusion that GHGs could be reasonably anticipated to endanger health or welfare "'meant carbon dioxide could be legally defined as a pollutant and regulated.' This is backwards. It is not that something must be considered dangerous before it can be considered an air pollutant under the Act. Rather, if something is an air pollutant (because it satisfies the Act’s definition, which does not require dangerousness), then the EPA may regulate that pollutant under certain CAA provisions if the EPA subsequently concludes that emissions of that pollutant cause or contribute to air pollution that may endanger health or welfare. In other words, just because something is an air pollutant under the Act does not necessarily mean that it is dangerous or that the EPA can or must regulate it.

Why do you hate us?

Yes, the EPA may well try to use the IRA to regulate carbon dioxide from coal plants, although the agency should ultimately lose because it lacks specific Congressional authority to do so. Of course, the bureaucrats can cause a lot of damage in the meantime. 

How much can still be constrained. Senator Shelley Moore Caputo of West Virginia cut $45 million  from the IRA which she argued would have expanded the EPA’s authority and that violated the rules respecting content of budget reconciliation bills. That she prevailed on this score adds to the contention of those disputing the NYT account; nothing in the IRA expanded EPA’s authority to regulate power plants. Nor could it under a budget reconciliation bill. But watch them try.

About That 'Inflation Reduction Act...'

That “Inflation Reduction Act” just passed by Nancy Pelosi's House of Representatives? The one with a projected spending orgy of yet another $740 billion and Potemkin revenue projections? Naturally, it’s worse than you think.

First is the lack of any sincere effort at pretense that this was much more than dishonest re-branding failed left-liberal big government proposals, of which 87,000 new IRS employees is the most eye-popping. New York Times columnist economist Paul Krugman rakishly opened this column with the confessory, “[t]he Inflation Reduction Act, which is mainly a climate change bill with a side helping of health reform…”

Ah, yes. The long-stalled “climate” legislation. No support for something? Just call it whatever the public do support. Expect annual Free Beer and Apple Pie Acts. It’s not like there’s a crisis of confidence in institutions. Just lie, baby! Fighting inflation, one dishonest abandonment of republican principles at a time.

It's a climate act! A tax hike! Health care!

So, no, it isn’t just a tax and spending bill. The “Inflation Reduction Act” — also sold as deficit reduction — will neither lower inflation nor the deficit but, in addition to containing much of Alexandria Ocasio-Cortez’s “Green New Deal” spending, it also holds 40 pages of amendments to the Clean Air Act (CAA).

You may have heard Sen. Ted Cruz saying that the bill overturns the Supreme Court’s recent opinion in West Virginia v. EPA, which finally drove a stake in the Obama climate-change regulations via the CAA. That’s a bit oversold. Which is not to say the provisions are not problematic and possibly very much so.

Consider Sec. 60107 of the reconciliation bill (page 678), which adds a “Sec. 135: Low Emissions Electricity Program.” Very ‘AOC’. And to pull this off, it sails in under the spending flag, $17 million for a few thisses and $17 million for a few thats. But in the back, piloting this cruise, is a section that reads, “$18,000,000 to ensure that reductions in greenhouse gas emissions are achieved through use of the existing authorities of this Act.”

Oh. And which authorities might those be, because… don’t we keep hearing about federal courts throwing out claims that the Clean Air Act is a global warming law? Doesn’t say. Which itself is clever, though hopefully in the end too clever by half. This stunt has two most-likely objectives, first being to dent the armor of folks like Supreme Court justices Roberts and Gorsuch and many litigants and amici in the seemingly never-ending stream of climate litigation saying: look, whenever Congress has specifically considered actually regulating greenhouse gases through the CAA it has rejected the proposal.

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In West Virginia, SCOTUS gutted yet another attempt to use one provision this way, while clearing its throat for the next round by placing a “Major Questions Doctrine” front and center: Do not claim that some provision of a given law provides you with the authority for massive economic disruption like greenhouse gas reduction regulations unless you can point to Congress saying that’s what you’re to do.

The purpose of the "Inflation Reduction Act," now heading to Joe Biden's desk for signing, is to arm litigants hostile to the energy industries to claim Congress has said, "oh, just use those authorities we provided over there." See? Purportedly a post-West Virginia v. the EPA affirmation by Congress that, yes, the Clean Air Act provides authority to reduce GHGs, so this (choose your claimed authority) is what they were referring to. Which it isn't. No matter what the Democrats say:

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The Senate parliamentarian did strike a companion provision as improperly legislating in a budget bill. That language stood out for having dared to specify certain CAA provisions. The subtler gambit, unfortunately, seems to have gone unnoticed. In fact, it will now buttress defense of those ideas for “backdoor climate plans” using various provisions of the Clean Air Act not heretofore deployed by the climate crowd as possible vehicles to re-engineer the U.S. economy by pretending such measures are consistent with congressional intent. It’s so obvious they didn’t even need to specify what that authority is!

Rather, its purpose is to toss a rhetorical crutch to all manner of activists, whether seated on the bench, in newsrooms, or lurking in pressure groups to decry the trustworthy talking point that Congress has always spit the climate bit and so the latest expansive interpretation of some little-used statutory provision into a global warming roadmap is, supposedly, no longer far-fetched.

Which is to say this is less designed to “overturn” West Virginia, than the implications of that spectacular win, in prepration for the climate complex’s next stab at claiming Congress has already adopted a global warming regulatory regime, while still avoiding any supposed statutory authority. It is pretty aggressively mischievous, subtly eroding a key premise, and recurring theme of the climate opposition, that Congress never authorized any of these programs to be greenhouse gases reduction programs. Which it didn’t.

I for one do not see any of the six justices in the West Virginia majority rolling over for such tricks and saying ah well, that changes things and turns out Congress had settled its debate on the GHG issue. I do however see the D.C Circuit court, which will hear the case first, doing just that.

So, this cynical mischief isn’t, ahem, the end of the world. But it is a very unwelcome development. And an even worse sign of what our republic has come.

Will the Supreme Court Nip the EPA Next?

Too many people judge Supreme Court actions on whether they agree with the outcome, without reference to how the Court said it reached that outcome. Many who cheered when the Court kept the Trump administration from asking citizenship questions on the census cannot be happy with the recent decision respecting vaccination mandates and may be even more unhappy when the Court resolves three challenges to the Environmental Protection Agency’s (EPA) regulations on power plant energy production.

This Supreme Court appears to be chipping away at the behemoth Administrative State and the EPA’s regulations on greenhouse gas regulations may be next on the chopping block. That’s the view of Jonathan Adler at Volokh Conspiracy and I think he has a valid claim.

Not so fast, OSHA.

Adler’s thesis begins with the Occupational Health and Safety Administration’s emergency regulation which mandated that all private employers with one hundred employees  require its employees to be vaccinated against Covid or undergo repeated weekly testing for the virus. The Court ruled that this exceeded the agency’s grant by Congress to protect the health of workers in their place of employment  The Court made clear that without a clear congressional mandate the agency was never given congressional authority to make such  “ a significant encroachment into the lives—and health—of a vast number of employees.”

 There is a hint in Chief Justice Roberts and several other members of the court that they believed that the regulation was a pretextual effort to increase Covid vaccinations, and not a workplace safety move. And the scope of OSHA’s mandate is, after all, simply and exclusively workplace safety. The notion that regulations might be held invalid because they were pretextual even if the agency could provide a reasonable justification for them, was signaled  in an earlier case involving the right of the Trump administration to reinstate a citizenship question in the census:

 [T]he Chief Justice's decision to prop open the door to consider pretext invites litigants challenging agency actions to search for evidence -- whether or not in the official record -- to show that they, too, have been the subject of an unlawfully pretextual agency action. There is nothing in the Chief Justice's opinion that suggests this analysis is to be confined to those contexts in which the distribution of political power or other particularly weighty concerns are at stake, and there is much language in his opinion... that could find a ready home in legal challenges against HHS, the Education Department, or the EPA.

This is a departure from the usual view on judicial review . Normally, if the regulators can provide a reasonable justification and the regulation aligns with the statutory mandate, courts will not interfere. It also justifies court consideration of matters outside the text of the regulations itself. In sum, it presaged the OSHA case where the White House chief of staff Ron Klain retweeted that this regulation was a “work around” to increase the number of people vaccinated when there was no authority for an executive order compelling it.

Other evidence of the pretextual nature of the  vaccine mandate regulations is found in its own language--the deciding factor for coverage was the number of employees and not the workplace conditions. So, for example if all those one hundred employees were working from home they were covered by the mandate, but if a ninety nine- employee shop involved people working close together in poorly ventilated settings they were not. Seems fairly obviously irrational, doesn’t it?

Block that pretext!

The left may have cheered the census case outcome -- the Supreme Court remanded the issue back to the lower courts and in so doing delayed inclusion of the question in the census-- but it may come back to bite them as coming up on the docket is a case involving the EPA and its authority to regulate greenhouse gases.

This case comes up on several writs of certiorari to the court, challenging a decision by the U.S. Court of Appeals for the District of Columbia which held that the Environmental Protection Agency (EPA) had authority under the Clean Air Act  to regulate greenhouse gas emissions from power plants. Then President Trump rescinded the Obama Administrations Clean Power Plan (CPP) and adopted an Affordable Clean Energy (ACE) in its place. The D.C. court concluded that the Trump Administration's recision was arbitrary and capricious, though it did not compel a reinstatement of the CPP, and the EPA still has not come up with new regulations. In the face of the Supreme Court trend to clip administrative agency wings the EPA is in limbo presently. It has no idea how far the new regulations may sweep.

The three cases upon which the Court granted certiorari broadly question EPA’s authority -- does the Clean Air Act have any limits? What are these administrative boundaries? For example, can the agency ignore cost of compliance, the power of states to set performance standards, reshape the nation’s electricity grid? These, among others, are the questions raised by the three petitioners.

However the Court decides, it is likely to be the most important environmental (and energy) decision cases in the court’s history. And it seems to follow on a partisan attack on the revival of an apparently unrelated citizenship question in the census. On such things does the course of history turn.

The Court Steps in to the War on Greenhouse Gases

What’s a g,reenhouse gas and who and how can regulate it? The Supreme Court has agreed to decide whether the Environmental Protection Agency has the authority to regulate greenhouse gases in a quartet of appeals from the U.S. Court of Appeals for the District of Columbia. Their decision could spell the end of the administrative agencies' hitherto unbounded, extra-legal ability to "regulate" U.S. business.

The matter begins with then-President Obama’s  Clean Power Plan of 2015. That plan established guidelines for states to limit carbon dioxide emissions.  The essential features of the plan, which was designed to boost renewable energy sources in place of fossil-fuel generated power, set standards to reduce CO2 emissions by 32 percent from 2005 levels by the year 2030. It required each state to submit plans to the EPA for reaching those goals and gave them until 2022 to comply with the approved plans. This grand plan was short-lived. Two years later under President Trump the head of the EPA proposed a rule repealing the plan Subsequently, after a review, the EPA did repeal the Plan.

Barry's brainchild.

Administration action was not the sole block to enforcement of the Plan --  industry groups and twenty-seven states filed legal challenges to the Obama plan:

because the E.P.A. assumed utilities could reduce emissions at individual plants by taking actions outside of those plants — say, by replacing coal plants with wind farms elsewhere. Industry groups and more than two dozen states challenged this move in court, arguing that the EPA can look only at cleanup measures that can be undertaken at the plants themselves.

The states argued that the Clean Air Act under which the EPA was acting never gave the agency the power to regulate CO2 emissions and the Supreme Court held enforcement of the plan in abeyance until the court challenges could be resolved.

It's unprecedented for the Supreme Court to step in and block a federal regulation like this, before review by an appeals court. None of the justices gave any explanation for the move. The justices voting to block the rule were Roberts, Alito, Scalia, Thomas, and Kennedy.

In January of this year after lengthy hearings on the issue the U.S.  Court of Appeals for the District of Columbia struck down the effort to repeal the Obama emissions plan. That Court remanded the matter to the EPA to craft regulations on power plant CO2 emissions.

The Court noted that the Clean Air Act grants the federal agencies the power to regulate air pollution. Significantly, however, the Court did not direct the EPA to readopt the Obama plan that Trump had repealed. That means EPA has to start over, and the latest  Supreme Court action means the EPA cannot even begin the process until sometime in the middle or late 2022 after the Court decides the case it just decided to hear. So none of the EPA regulations in this area are operable now. To me, it’s a stretch  to consider CO2 a pollutant. Nevertheless, as the D.C. Court observes in its opinion the Supreme Court has held that CO2 is a pollutant:

It was not until the Supreme Court’s 2007 decision in Massachusetts v. EPA, however, that the Court confirmed that carbon dioxide and other greenhouse gas emissions constituted “air pollutant[s]” covered by the Clean Air Act. The Supreme Court explained that the Clean Air Act’s “sweeping definition of ‘air pollutant’ includes ‘any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air...'  On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word ‘any.’ Given that statutory command, the Supreme Court ruled that the EPA “can avoid taking further action” to regulate such pollution “only if it determines that greenhouse gases do not contribute to climate change” or offers some reasonable explanation for not resolving that question.

You can practically smell the absence of CO2.

At no point to my knowledge has Congress held that it considers C02 a pollutant. The closest statutory language I can find is in the 1987  Global Climate Protection Act which found that “manmade pollution[,]” including “the release of carbon dioxide... may be producing a long-term and substantial increase in the average temperature on Earth[.]”

The  four cases which are joined in the matter  in which the Supreme Court just granted certiorari  cover a variety of related issues including the scope of the Clean Air Act  whether regulations must be based on existing technologies and methods at existing sources (that is, individual plants) and not industry-wide ones, and whether  the EPA usurped state regulatory powers.

In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation's electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, non-air impacts, and energy requirements?

Whether 42 U.S.C. § 7411(d), which authorizes the EPA to impose standards "for any existing source" based on limits "achievable through the application of the best system of emission reduction" that has been "adequately demonstrated," grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems such as cap-and-trade regimes.

Whether 42 U.S.C. § 7411(d) clearly authorizes EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation's energy system... Can EPA promulgate regulations for existing stationary sources that require States to apply binding nationwide "performance standards" at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive States of all implementation and decision making power in creating their Section 111(d) plans?

Can EPA promulgate regulations for existing stationary sources that require States to apply binding nationwide "performance standards" at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive States of all implementation and decision making power in creating their Section 111(d) plans?

Professor Jonathan Adler offers up the most valuable of the commentaries on these matters I can find.

This case could be tremendously significant beyond the question of the EPA's regulation of greenhouse gases because (as detailed below) the questions presented encompass both the immediate question of what authority the EPA has under Section 7411 of the Clean Air Act, but also the broader question of how prescriptive Congress must be when delegating broad regulatory authority to federal agencies. This gives the Court room to refine and expand the "major questions" doctrine (as I have suggested it might want to do), as well as to perhaps identify some of the outer limits on delegation more generally.

Thanks, Nixon!

It’s peculiar, as Adler also observes, that the Court took up the case now as the Biden Administration has not even proposed its own regulations. Four of the justices had to agree to hear theses cases for the writ of certiorari to be granted. To Adler, and me, the fact that at least four justices are concerned about the broad grant of administrative power to the EPA hints at some effort to require Congress to be more “prescriptive” to regulatory authority to administrative agencies. Perhaps the days of Congress leaving to the executive branch to fill in broad empty provisions in legislation will be coming to an end. Perhaps , as well, the Court is rethinking its decision in Massachusetts vs. EPA on CO2 emissions as pollutants.

However, this case is resolved -- and I dare not predict these days -- it will have far reaching implications for environmental law. As well, it may set new boundaries on the interactions between Congress and the executive branch and whether the administrative agencies’ powers, so long given very broad reach, will be clipped and Congress forced to exercise its constitutional responsibilities.