Marcia Coyle, from supreme court brief

Five years ago, environmentalists endured their worst term in decades, suffering a stunning 0-5 outcome in the U.S. Supreme Court. This term, they are 2-1 and victorious on the most pressing of their issues: greenhouse gas pollutants.

The justices on Monday handed the Obama administration its second major, if not complete, victory in its efforts to combat air pollution, this time those pollutants contributing to global warming.

Although industry lawyers called the decision a “slap down” for the administration’s efforts and environmentalists applauded the ruling as significant reinforcement of those efforts, both sides appeared to agree that the Environmental Protection Agency is left with important leeway to regulate greenhouse gases in most cases.

In Utility Air Regulatory Group v. Environmental Protection Agency, Justice Antonin Scalia, writing for the majority, “split the baby, allowing EPA to regulate big operations but preventing a great expansion in EPA authority that nobody truly wanted,” said Tim Profeta, director of Duke University’s Nicholas Institute for Environmental Policy Solutions.

“I think he did all a favor—even the agency, which did not want to regulate Ma-and-Pa [businesses]—but just found a different legal route than the agency had found,” he said. “And he did reaffirm the agency’s right to regulate greenhouse gases under the Clean Air Act.”

In fact, Scalia himself, in his summary from the bench on Monday, said the agency was getting “almost everything it wanted in this case.” It sought to regulate sources responsible for 86 percent of the greenhouse gases emitted from stationary sources nationwide, he said. Under the court’s decision, the agency will be able to regulate 83 percent.

The court’s decision came in two parts. A 7-2 majority upheld the agency’s authority to require major polluting facilities, such as factories, refineries and coal-fired power plants, to use the “best available control technology” to control their greenhouse gas emissions.

Those facilities already are subject to EPA’s permit requirements because of their emission of pollutants other than greenhouse gases, Scalia said, and already must apply the best available control technology. He said requiring that technology for their greenhouse gas emissions as well is a “permissible interpretation” of the federal Clean Air Act.

However, unlike those already-regulated facilities, EPA does not have the authority to impose its permit programs on new stationary sources that only emit greenhouse gases, a 5-4 majority held.

Because of tonnage triggers in the law, EPA’s enforcement would sweep in millions of small emission sources, such as offices, schools and churches, the agency recognized and explained to the court. If a permit were required for every one of those sources, the agency said, the permit program would be too unwieldy. The agency sought to address that problem by “tailoring” or increasing the tonnage requirements triggering its permit requirements.

But EPA is not free to “rewrite” a law designed by Congress with specific tonnage limits, Scalia said. EPA’s approach is “unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” An agency, he added, has “no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202660502830/Greenhouse-Gas-Ruling-Gives-EPA-Leeway-to-Regulate#ixzz35YUEY9BQ