Commentary: Does the Michigan v. EPA decision doom the Clean Power Plan?

The U.S. Supreme Court’s June decision that rejected a Clean Air Act regulation limiting mercury emissions from power plants looms over the Obama administration’s push to cut those facilities’ greenhouse gas emissions and, given the reasoning employed by the five justices in the majority, it’s possible that the Clean Power Plan could be at risk of a similar fate.

In Michigan v. Environmental Protection Agency Justice Antonin Scalia concluded that the CAA provision at issue there requires EPA to consider the potential costs of an emissions limit to the polluter before it concludes that the limit is, in the words of the statute, “appropriate and necessary.” That decision, which was joined by fellow Republican appointees Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, could be understood as a departure from the way the Court has traditionally interpreted the environmental laws.

For the past thirty or so years, the Court has tended to uphold an agency’s interpretation of a statute that authorizes it to write regulations if that interpretation is “reasonable.” In the words of the majority opinion in a case called Chevron USA, Inc. v. Natural Resources Defense Council, Inc.:

“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Section 112 of the CAA does not say when EPA must consider the costs of a potential regulation, but instead requires only that EPA do so before issuing that regulation. In fact, EPA made clear that it would consider the costs of compliance with the Mercury and Air Toxics rule struck down in Michigan v. EPA before the regulation was finalized.

According to the Chevron rule that traditionally governs, the Court should have upheld the MAT rule against the attack leveled against it because the EPA’s administrator reasonably understood the statutory language to permit the agency to consider compliance costs after deciding that some limit on mercury and other toxic air pollutant emissions from coal-fired power plants is needed to protect public health and the environmental quality of the atmosphere.

But it didn’t. Instead, Scalia wrote that EPA had tried to “gerrymander” the Chevron rule by ignoring a part of the CAA. To Scalia and the justices that joined his opinion, the word “appropriate” necessarily includes consideration of compliance costs.

The Clean Power Plan, like the MAT rule, is based on a two-step process in which EPA first decided that limits on carbon dioxide emissions are needed to advance the goals of the CAA. This conclusion, known as an “endangerment finding,” preceded the agency’s consideration of the costs to industry; those costs were taken into account before the Clean Power Plan was announced in early August.

Will the Supreme Court apply the reasoning of Michigan v. Environmental Protection Agency in the inevitable challenge to President Barack Obama’s signature program for limiting the damage coal combustion does to the atmosphere? Or will it conclude, instead, that its interpretation of “appropriate and necessary” is irrelevant because a different section of the CAA authorizes the Clean Power Plan?

We cannot know that until litigation that aims to eliminate the Clean Power Plan reaches the justices. But there may be cause to worry. For one thing, Justice Thomas wrote, in his concurring opinion in the Michigan case, that he thinks deference to agency interpretations of statutes might violate the Constitution’s separation of powers doctrine. Justice Alito seems to think the Chevron doctrine has to go, too, and Scalia himself has indicated some skepticism about the degree to which courts refrain from second-guessing an agency’s understanding of a statute’s meaning. The Court’s most senior justice, Scalia has voted not to defer to an agency statutory interpretation in nearly half the cases that raise the issue since John Roberts became chief justice ten years ago.

It is not clear that Chief Justice Roberts outright opposes the idea of deferring to agency interpretations of statutes, but he has indicated a willingness to limit the circumstances under which that deference is due.

Because the Court’s four justices appointed by Democratic presidents (Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, Elena Kagan) have not indicated any inclination to overrule the decision in the Chevron case, the fate of much of the country’s environmental regulatory apparatus is in the hands of Justice Anthony M. Kennedy.

The cacophony surrounding the 2016 Presidential election will be laced with arguments over issues big and small. The question whether EPA, or for that matter, the agencies that manage everything from our food supply to wildlife and the public lands, will have their decisions subjected to scrutiny by politically conservative judges who are inclined to favor the interests of industry or instead whether the expertise those agencies have shown will be granted the respect it deserves is one that the justices who replace 82-year old Ginsburg, 79-year old Scalia, 79-year old Kennedy, or 77-year old Breyer should keep in mind when they cast a ballot for the candidate who will appoint them.

Climatologist Hansen, children sue to force aggressive U.S. response to climate change

A group of children, along with a former NASA climatologist made famous by his prescient warnings about climate change, has sued the U.S. government in a bid to force a more robust policy response to climate change.

Nominally aimed at blocking a facility that would allow the export of natural gas, the lawsuit could potentially result in a court order requiring the President to develop and implement a plan to reduce greenhouse gases enough to return the atmosphere’s carbon dioxide concentration to 350 parts per million.

“This lawsuit asks whether our government has a constitutional responsibility to leave a viable climate system for future generations,” Julia Olson, executive director of Our Children’s Trust and a lawyer representing the children, said. “The federal government has consciously chosen to endanger young people’s right to a stable climate system for the short-term economic interests of a few.”

Among the arguments raised by the lawsuit is one that invokes a century-plus old legal principle called the public trust doctrine.

Under the public trust doctrine, governments are held to a duty to protect certain natural assets from destruction by private parties.

As explained in an influential academic article published more than 40 years ago:

“The approach with the greatest historical support holds that certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than of serfs,” the article by the late Joseph Sax, a renowned law professor, explains. “It is thought that, to protect those rights, it is necessary to be especially wary lest any particular individual or group acquire the power to control them.”

In other cases in which the public trust doctrine has been argued as an anvil to force state governments to protect the stability of the climate against human greenhouse gas emissions, courts have rejected the claim.

The new case is the first to be filed in a federal court. Captioned Juliana ex rel. Loznak v. United States of America, the lawsuit names President Barack Obama, seven cabinet officers, the Environmental Protection Agency administrator, the White House science advisor, the director of the Office of Management and Budget, and the director of the Council on Environmental Quality as defendants.

The plaintiffs, who include 21 children between the ages of eight and 19 years and climate scientist James Hansen, also allege that ongoing government support, financial and otherwise, of fossil fuel extraction and use violates their constitutional rights to equal protection of the law and to due process under the law.

“Our nation’s climate system, including the atmosphere and oceans, is critical to Plaintiffs’ rights to life, liberty, and property,” the complaint alleges. “Our nation’s climate system has been, and continues to be, harmed by Defendants.”

The lawsuit asks a federal district judge to order the Obama administration to reduce the nation’s use of fossil fuels and to act specifically to reduce the carbon dioxide concentration of the planet’s atmosphere.

If successful, the litigation would also derail the planned Jordan Cove Liquid Natural Gas terminal in Coos Bay, Ore. If it becomes operational, that project would account for more carbon dioxide to the atmosphere than any other single industrial facility in the state.

The Federal Energy Regulatory Commission must approve the Jordan Cove facility before it can be built. FERC expects to release an environmental impact statement that examines the project later this month.

The youth plaintiffs, along with Dr. Hansen and an environmental organization, filed their lawsuit Aug. 12 in the federal court in Eugene, Ore.