What does Justice Scalia’s passing mean for environmental cases at Supreme Court?

The death Saturday of Justice Antonin Scalia at age 79 is likely to have a significant impact on the environmental law docket at the U.S. Supreme Court.

First, the significance of the stay against the part of the Obama administration’s Clean Power Plan that deals with existing coal-fired electric plants, issued by a 5-4 vote that had Scalia supporting the request by utilities and a coalition of anti-regulation states to block the rule, is reduced. With a presumed 4-4 tie on the question whether the Clean Power Plan is consistent with the Clean Air Act and the Administrative Procedure Act (and the U.S. Constitution, to the extent a Tenth Amendment argument is mounted by challengers), any decision in the litigation by the U.S. Court of Appeals for the District of Columbia Circuit is likely to be affirmed. The D.C. Circuit has to be assumed inclined to uphold the carbon dioxide rules; a significant majority of the judges on that bench were appointed by Democratic Presidents and the assigned panel previously rejected the stay application.

Should President Obama obtain Senate confirmation of a nominee to replace Scalia before his term expires next January, it’s at least somewhat likely that appointee would uphold the rule. Should the Republican-dominated Senate succeed in blocking any replacement until after the next President’s term starts, as the chamber’s majority leader has said the GOP will try to do, the outcome would likely depend on the party affiliation of the election winner. A Republican President would likely withdraw the Clean Power Plan, or settle the litigation on terms favorable to the states and industrial interests contesting it in the D.C. Circuit, even before the litigation challenging it arrived at the Supreme Court. Failing that, a Republican-appointed justice could be expected to take a skeptical perspective on the Clean Power Plan.

Two other significant environmental cases await the Supreme Court’s decision on whether to grant petitions for certiorari. The question whether to accept both is probably impacted by the vacancy created by Scalia’s death.

Scalia, early in his career as a Supreme Court justice, defended the iconic Chevron rule that requires courts to defer to agency interpretations of ambiguous language in statutes. But that willingness to defer to agencies seems to have lessened as the justice’s time on the bench proceeded. As Professor Dan Farber wrote Feb. 15 on Legal Planet:

“There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, UARG v. EPA, and Michigan v. EPA.  In all three cases, the ‘unreasonable’ agency was EPA.”

Scalia was the author of all three.

Moreover, Scalia had shown a willingness to look harshly on law that tended to favor environmental protection. He wrote several opinions that reduced the ability of environmental groups to file lawsuits challenging federal policy, for example, and he also was the author of a plurality opinion in a 2006 decision that would have, absent a moderating concurrence by his colleague Anthony Kennedy, drastically reduced the U.S. government’s regulatory power over wetlands and streams.

It seems plausible, then, to suppose that Scalia had developed a greater willingness to reject the ways in which agencies, especially those tasked with enforcing environmental laws, read federal statutes. In the two cases that are now subjects of cert petitions, that perspective may have made a difference in whether the court grants review and in the outcome.

Chesapeake Bay
Chesapeake Bay is shown in this image obtained by the LANDSAT satellite.

The first of these two cases involves efforts to clean up the  64,299 square-mile large Chesapeake Bay drainage basin. In a July 2015 decision the U.S. Court of Appeals for the Third Circuit rejected attacks on the Total Maximum Daily Load designations for the bay. The Obama administration issued the pollution limits in 2010 under an agreement with environmental organizations who had sued the agency for failure to finalize them.

The TMDLs, which apply to nitrogen, phosphorus, and sediment loading into the beleaguered bay, are a tool made available by the Clean Water Act. They are imposed by EPA as a supplement to point source emission limits after the agency approves water quality standards created by a state for an affected water body or, if it rejects the state-based pollution limit, imposes its own.

On Nov. 6 the American Farm Bureau Federation and several other agriculture organizations asked the Supreme Court to hear the dispute. In their cert petition the groups argued that EPA’s decision to issue the TMDLs for Chesapeake Bay sets a precedent that could allow expanded federal power over land use all over the country. The groups base this assault on the TMDLs on a claim that EPA’s interpretation of the Clean Water Act is inconsistent with Congress’ intent. In particular, the agriculture groups argue that EPA cannot allocate responsibility to comply with the TMDLs for nitrogen, phosphorus, and sediment among multiple sources of those pollutants and must, instead, limit itself to specifying the maximum amount of those pollutants that can enter the bay.

As a member of the Supreme Court’s politically conservative bloc and as a jurist who has shown a willingness to rigorously scrutinize EPA’s reading of environmental laws, Scalia might have been inclined to find this argument convincing enough throw out the TMDLs. While there may still be four votes to grant the cert petition, his absence probably means there are not five votes to reverse the Third Circuit decision.

The case is American Farm Bureau Federation v. U.S. Environmental Protection Agency, No. 15-599.

Tongass National Forest - photo by Mark Brennan
Tongass National Forest – photo by Mark Brennan

Another dispute, this one involving Alaska’s 16.8 million acre Tongass National Forest, may also be affected by Scalia’s death. There, Alaska has asked the justices to review a decision by the U.S. Court of Appeals for the Ninth Circuit that invalidated a George W. Bush administration regulation exempting the Tongass from the Roadless Area Conservation Rule.

RACR is a regulation imposed by the administration of President William Jefferson Clinton that limits development, especially logging and road construction, in wilderness-quality areas of national forests. The Clinton-era U.S. Department of Agriculture Forest Service decided that the importance of preserving roadless tracts in the Tongass outweighed the economic consequences that followed from selling less timber from that forest in the future.The agency thus foreclosed about 90 percent of future planned timber harvests on the Tongass.

In December 2003, the Forest Service reversed that finding and decided that the economic value of timber in the Tongass exceeded the environmental value of the roadless areas. The Bush administration acted after Alaska had challenged RACR on the merits but before the validity of RACR was ultimately upheld by the federal courts of appeals based in San Francisco and Denver.

The Ninth Circuit decided that the Bush administration’s Forest Service changed its perspective on the relative value of roadless areas in the Tongass without providing a sufficient justification. Relying on the Supreme Court’s decision in a case called Federal Communications Commission v. Fox Television Stations, Inc., in which Scalia wrote the majority opinion, the en banc panel held that the agency had disregarded its earlier factual findings about the importance of roadless area conservation without enough explanation.

Alaska’s cert petition argues that a change in political philosophy that occurs when an administration of a different party assumes power is enough justification for it, a point the Ninth Circuit panel acknowledged, and that no other reason is needed to support a change in a regulation.

Alaska’s attorneys may have hoped that Scalia’s vote, along with that of the other four conservative justices, would be enough to save the Tongass National Forest exemption from RACR. Without Scalia’s vote, it is less likely that five justices will agree that the Ninth Circuit got it wrong and, therefore, possibly less likely that the requisite four justices will vote to grant review.

The case is Alaska v. Organized Village of Kake, No. 15-467.

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.

Supreme Court rejects mercury emissions rule

The U.S. Supreme Court has rejected the Obama administration’s effort to limit emissions of mercury and other toxic air pollutants from coal-fired power plants.

The 5-4 decision held that the Environmental Protection Agency should have considered costs the regulations may impose on industry.

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Antonin Scalia wrote for the majority.

The regulation was issued under a section of the Clean Air Act that demands that it be “appropriate and necessary.” The federal appeals court in Washington, D.C. had ruled that this clause of the CAA does not require EPA to consider compliance costs at the stage of deciding whether to regulate.

EPA has worked to impose limits on mercury emissions from electrical facilities for more than two decades. The agency decided in Dec. 2000 that the CAA standard of “appropriate and necessary” compelled regulation of power plant mercury emissions.

A predecessor to the current regulation, issued by President George W. Bush’s administration in Mar. 2005, was struck down by a federal appeals court in 2008.

The regulations at issue before the Supreme Court, formally known as the Mercury and Air Toxics Standards, were finalized in February 2012.

The agency argued that the regulation would produce public health benefits worth tens of billions of dollars.

The decision, which was supported by the five justices appointed by Republican Presidents, does not eliminate the legal effectiveness of the  regulations. Instead, the Court remanded the regulation to the agency, which basically means that EPA must reconsider it.

The case is Michigan v. Environmental Protection Agency, No. 14-46.

Supreme Court poised to decide fate of mercury emission limits

The fate of a contentious U.S. Environmental Protection Agency rule limiting mercury emissions from electric power plants will be decided by the nation’s highest court sometime in the next few days in a case that could force EPA to factor in regulatory compliance costs when deciding if an air pollutant is harmful to human health.

The case turns on the question when EPA must consider industry’s compliance costs in the process of imposing emission limits on the category of air pollutants that are considered hazardous to human health and the environment.

Section 112 of the Clean Air Act imposes the requirement of a so-called “air toxics determination” before the agency can set limits on the discharge of those toxic pollutants to the atmosphere.

The statute provides that EPA must “list” all sources of air pollutants that  “present[] a threat of adverse effects to human health or the environment” that “warrant[] regulation under this section.” Once EPA lists a source of such a hazardous air pollutant, the agency is required to set standards that achieve the “maximum degree of reduction in emissions,” considering factors including compliance costs, energy requirements, and non-emission related health and environmental impacts.

The administration of former President Bill Clinton decided in Dec. 2000 that regulation of mercury, particulates, and toxic gases from electric  power plants is necessary to protect public health and the environment. The subsequent administration sought to alter that determination, but its effort to do so was rejected by a federal appeals court in 2008.

The Obama administration proceeded with development of a so-called Mercury Air Toxics rule and finalized it in Feb. 2012.

According to a fact sheet prepared by EPA, the rule would likely save up to 11,000 lives per year. About 1,400 coal-and oil-fired power plants would be affected.

During the process of finalizing the MACT rule, EPA evaluated the costs that electric utilities may incur in order to comply with the 2012 emission limits. The agency determined that the total annual costs of compliance would be about $9.6 billion. That compares to yearly public health benefits that range from $37 billion to $90 billion.

Lawyers for industry and some state governments challenged the rule in court, arguing that EPA must consider industry’s costs of compliance with emission limits before deciding that regulation of those emissions is necessary.

They lost before the U.S. Court of Appeals for the District of Columbia Circuit, which ruled in 2014 that EPA had properly considered costs at the stage of the process at which the emission limits were set.

Only one member of the three-judge panel that heard the case at the appeals court level, an appointee of former President George W. Bush, agreed with the industry lawyers’ argument.

“It’s just kind of inconceivable that Congress meant for EPA to do a cost-benefit analysis at the decision-to-regulate stage,” Karl S. Coplan, a professor of law at Pace University Law School, said. “It’s a technology-based limitation, not a health-based limit. EPA must consider costs at the stage of what the limit must be. There’s no point in making EPA consider costs at the should-we-regulate stage and then again at the what-the-limit-should-be stage.”

The Supreme Court has generally required federal courts to defer to agency interpretations of the statutes they administer if the language at issue is ambiguous and the agency’s reading is reasonable. This approach to deciding cases involving challenges to agency action, known as the Chevron doctrine, is a cornerstone of administrative law.

Coplan does not think that the MACT case before is likely to induce a majority of the justices to abandon the doctrine altogether.

“I think there are some justices that are uncomfortable with it,” he said. “But their discomfort seems to depend on which side it comes up. It’s fair to say that Justice Scalia is one of those who has expressed skepticism about it in the past.”

If the Court does not turn away from the Chevron doctrine, then the only rationale it would have to reject the MACT rule would be would be that the text of the Clean Air Act that appear to foreclose consideration of costs at the stage of deciding whether a pollutant is dangerous to human health and the environment actually does require the agency to consider such costs then.

“The finding by EPA that regulation of electrical utility industry emissions is appropriate was made many years ago and the practical effect of this decision, depending on how it comes out, could be a real setback for EPA’s regulation of coal-fired power plants and for cleaning them up,” Coplan said.

The Supreme Court heard oral arguments in the case on March 25.

Supreme Court to decide whether to consider fight over revised ozone standard

 The U.S. Supreme Court returns to work next month and among the cases vying for the justices’ attention is a dispute over the George W. Bush administration’s decision to tighten limits on ozone emissions to the atmosphere.

The Environmental Protection Agency’s March 2008 change to the primary national ambient air quality standard for ozone lowered it by five parts per billion. The agency also set the secondary NAAQS at the same level as the primary NAAQS.

Opponents of that move, who include an industry advocacy organization called Utility Air Regulatory Group and the state of Mississippi, argue in their petition for certiorari that the Environmental Protection Agency set the new primary and secondary NAAQS at a level lower than necessary to protect public health.

Primary and secondary NAAQS for ozone, as well as certain other pollutants, are authorized by the Clean Air Act. A primary NAAQS aims to protect public health, while a secondary NAAQS is intended to advance public welfare.

Both NAAQS for ozone were challenged in the federal court of appeals in Washington, D.C.

The court held last year that EPA acted reasonably in making the change to the primary ozone NAAQS. The three appeals court judges, who ruled unanimously, summarized the scientific basis for the agency’s action:

Of particular relevance here, EPA emphasized new clinical studies, including human exposure studies, showing respiratory effects at ozone levels below 0.08 ppm. EPA also cited new epidemiological evidence suggesting associations between “serious morbidity outcomes” and ozone exposure at levels below 0.08 ppm, as well as risk assessments estimating the effects of various levels of ozone on the population.

The judges, who issued an unsigned opinion, ridiculed industry’s argument that EPA must presume a prior NAAQS to be valid, comparing that assertion to a “funhouse.”

The panel explained that a 2001 Supreme Court decision that requires EPA to set a “requisite” NAAQS, meaning one that is neither too onerous nor to lenient, also allows the agency to take into account scientific uncertainty.

Determining what is “requisite” to protect the “public health” with an “adequate” margin of safety may indeed require a contextual assessment of acceptable risk. Such is the nature of policy. But that does not mean the initial assessment is sacrosanct and remains the governing standard until every aspect of it is undermined. Every time EPA reviews a NAAQS, it (presumably) does so against contemporary policy judgments and the existing corpus of scientific knowledge. It would therefore make no sense to give prior NAAQS the sort of presumptive validity Mississippi insists upon.

Environmentalists, who argued along with a coalition of states, municipalities, and public health organizations that the ozone primary NAAQS was not stringent enough, fared no better before the appeals court judges. They asserted that EPA did not consider health impacts of a standard below 0.075 ppm and that the agency’s 2008 regulation did not include a necessary “margin of safety.”

The judges were not swayed.

EPA finds itself in a situation reminiscent of Goldilocks and the Three Bears. On one side, Mississippi argued that EPA is too stringent with its ozone NAAQS; on the other side, the governmental and environmental petitioners argue that the NAAQS is too lax. But unlike Goldilocks, this court cannot demand that EPA get things “just right.”

One study relied upon by the environmental advocates and their allies had been rejected by EPA on grounds that the sample size was too small; the court found this to be a reasonable decision. The panel similarly turned aside arguments that EPA should have placed more weight on epidemiological studies and that the agency did not act in a manner consist with internal risk assessments.

As for a margin of safety, the D.C. Circuit panel held that EPA has discretion to build that into the NAAQS itself.

The court did agree with arguments that EPA’s 2008 change to the ozone regulation established the secondary NAAQS at too high of a level.

The petition for certiorari pending before the Supreme Court will be granted if four of the nine justices agree to hear the case. The justices are likely to consider the petition at their Sept. 29 conference.

The case is Utility Air Regulatory Group v. Environmental Protection Agency, No. 13-1235.

Before the 2008 regulation, EPA had last changed the ozone NAAQS in 1997. That modification was also subjected to a multi-year litigation journey, being finally upheld by the U.S. Court of Appeals for the District of Columbia Circuit in 2002.

EPA must review NAAQS every five years. If justified by current scientific knowledge relating to public health and welfare impacts of emissions, the agency must change them accordingly. 


Justices will not review Mingo Logan Coal Co. case

The U.S. Supreme Court has declined an opportunity to weigh in on the question whether the Environmental Protection Agency can veto a wetlands permit granted by the Army Corps of Engineers.

The justices released an order Monday denying the petition for certiorari in Mingo Logan Coal Co. v. EPA.

As a result of the order, the huge Spruce No. 1 coal mine in Logan County, W.Va. remains in limbo.  The U.S. Court of Appeals for the District of Columbia Circuit, which had upheld EPA’s veto authority in an April 2013 opinion, had ordered the case remanded to a federal trial court in Washington, D.C. The district judge will now consider other argument mounted by industry lawyers in their effort to get the largest mountaintop removal project in history into operation.

Should the project proceed, miles of environmentally sensitive streams and several thousand square miles of forest would be destroyed.

For background on this case, please read this post.

Supreme Court to decide whether to hear mountaintop removal case


The U.S. Supreme Court will decide Friday whether to wade into the years-long fight over the largest proposed mountaintop removal mining project in history.

During the justices’ traditional Friday conference they will consider a petition for certiorari filed by a mining company that plans to fill miles of streams, and several square miles of streamside forests, with the dirt and rock removed in a quest for coal that would strip away more than 3,100 acres of terrain.

The permit allowing the destruction was granted by the U.S. Army Corps of Engineers in 2007, then revoked by the Environmental Protection Agency in 2011.

The legal fight focuses on whether EPA has the power to withdraw a permit granted by another agency of the executive branch after the beneficiary of that permit begins to act in reliance on it. But the real stakes of the now 15-year old battle involve the fate of one of the most fecund regions in the world.

Mountaintop removal mining, one environmental advocate says, is akin to “erasing the most biologically diverse forest on Earth.”

“It’s really hard to understand the scope and scale of it even from the ground below it,” Vivian Stockman, a spokesperson for Ohio Valley Environmental Council, one of the organizations fighting the Mingo Logan wetlands fill permit, said.  “You eliminate layers of rock that’s above the coal and dismantle the mountain. All of that goes into the streams.”

The battle that will be discussed around the justices’ conference room table Friday morning began in 1998, when Hobet Mining Co., a subsidiary of the giant Arch Coal Co., proposed to build the Spruce No. 1 coal mine in Logan County, W.Va.

Environmentalists launched the fight against the project in 1999, convincing a federal court to overturn a permit needed by the mining company before it could fill streams and cover land with the debris that conceals coal seams. That decision was, for the most part, upheld by a federal appeals court and, after several years of wrangling over the extent of environmental impact review required before the permit could be granted, the Corps again granted the permit in January 2007.

Along the way the mining project was transferred from Hobet to Wharncliffe-W.Va.-based Mingo Logan Coal Co.

The Corps relied on a section of the Clean Water Act that establishes a system for conserving wetlands when it gave Mingo the permit needed to proceed with the Spruce No. 1 mine. Thirty-seven dump sites in Appalachian streams were approved by the Corps.

EPA withdrew the permit in January 2011. According to the agency, the approximately 110 million cubic yards of mine waste pollution approved by the Corps-issued permit would destroy more than seven miles of waterway, including about 6.6 miles of two entire streams that are among the most pristine in West Virginia, and cover about 3.5 square miles of forest land.

The affected streams, EPA said in a document explaining its decision, “have some of the greatest aquatic animal diversity of any area in North America, including one of the richest concentrations of salamander fauna in the world, as well as many endemic and rare species of mayflies, stoneflies and caddisflies.”

The riparian forest land is equally vital for wildlife. EPA explained that “[w]ith their adjacent riparian areas, these streams provide important habitat for 84 taxa of macroinvertebrates, up to 46 species of amphibians and reptiles, [four] species of crayfish, and [five] species of fish, as well as birds, bats, and other mammals.”

EPA also pointed out that rivers into which the affected streams flow would experience significant selenium pollution and increased salinity as a result of the pollution from the Spruce No. 1 mine.

Mingo Logan prevailed in a federal trial court after filing a lawsuit challenging EPA’s action, but the U.S. Court of Appeals for the District of Columbia Circuit reversed that victory last spring, rejecting an argument that EPA could not pull the permit after it was issued.

“Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’ specification but instead expressly empowers him to prohibit, restrict or withdraw the specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will result,” wrote Judge Karen LeCraft Henderson for a unanimous panel.

The statutory language at the core of the fight is found in section 1344(c) of the Clean Water Act:

“The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”

The U.S. Department of Justice, in a response to Mingo’s petition for certiorari, argues that this language represents a compromise between the House of Representatives’ desire that the Corps have the final say on wetlands fill permits and the Senate’s intent that EPA have it.

The environmental community agrees with that take on the controversy.

“The industry is trying to blow this issue out of proportion,” Emma Cheuse, an attorney with Earthjustice who has represented environmental organizations opposed to the Spruce No. 1 mine, said. “EPA has had the authority under the CWA to serve as a backstop to protect clean water for decades.”

An EPA website indicates that the agency has invoked its section 1344(c) power only 13 times and Cheuse explained that, while the agency’s decision to reject the section 404 permit granted to Mingo is the first time it has exercised its veto power in the context of a dispute over mining-related water pollution, the agency has a solid factual record to justify its action.

“EPA made a decision here based on robust, strong, and scientific grounds that it provided,” she said.

But Lyle Denniston, a reporter at the respected SCOTUS blog who has covered the Supreme Court for more than half a century, said that he is not sure the question is as clear as the statutory language might lead a casual observer to believe.

“EPA has argued that it seldom has used this power, and Mingo argues that it has actually been used only once — in this case,” he said. “So the court may wonder whether the outcome has any implication for other factual situations.”

“I think that is quite a close question, not answered by the text — or at least debatable enough under the textual language that the court might very well want to clarify it — but, once again, only if it thinks the issue has wider implications,” he continued.

That is the position taken by Mingo and its supporters, who include 27 states and several business advocacy organizations.

Paul Clement, who served as the government’s chief advocate in the supreme court under former President George W. Bush, argued in the company’s petition for certiorari that Congress could not have intended EPA to have the power to revoke permission to fill wetlands, even a whole stream, after companies have invested large sums of money in projects that depend on elimination of a wetland.

“By holding that EPA may withdraw site specifications years after the Corps has issued a permit, the decision below destroys regulatory certainty and overturns the settled expectations of the regulated community,” he wrote.

The Obama administration disputes that analysis, telling the justices in a response to Mingo’s request for review of the D.C. Circuit decision that Congress’ understanding that EPA would interpret section 1344(c), and the agency’s long-standing record of reading the statute as a grant of authority to reject a permit after it is issued by the Corps, is entitled to deference from the Supreme Court.

 “An express delegation of rulemaking authority is the clearest sign of Congress’s intent that an agency will speak with the force of law when it interprets a statute. As relevant here, the CWA contains precisely such a delegation. . . One of [EPA’s] statutorily authorized functions is to withdraw specifications of disposal sites. The EPA therefore spoke with the force of law when it construed Section 1344(c) in its 1979 regulations, and when it subsequently published three post-permit final determinations after notice and comment and a public hearing (in 1981, in 1992, and in this case). And while the EPA has very rarely exercised its power to withdraw a specification after a permit has been issued, the agency has adhered since 1979 to the view that it possesses statutory authority to do so.”

The government’s argument on this point is based on a doctrine of administrative law that requires judges to defer to an agency’s interpretation of statutory language when there is any ambiguity present in it.

Should the Supreme Court agree to hear the case, it will likely consider it during the term that starts next October.

The case is Mingo Logan Coal Co. v. Environmental Protection Agency, No. 13-599.

Image courtesy Vivian Stockman, Ohio Valley Environmental Coalition.

Supreme Court to take up narrow question related to EPA’s greenhouse gas regulatory authority

The U.S. Supreme Court announced Oct. 15 that it will review a narrow question related to the scope of the Environmental Protection Agency’s authority to regulate greenhouse gas emissions.

In its order, the court took the unusual step of crafting its own question on which certiorari was granted. The justices asked the parties to brief “whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”

“Everybody’s scratching their head about the question they took,” Patrick Parenteau, a professor and senior counsel to the Natural Resources Law Clinic at Vermont Law School, said.

That question appears to be one that is well-settled. It arises from two regulations issued by EPA in the aftermath of the 2007 decision in Massachusetts v. Environmental Protection Agency.

In that case the court ruled that EPA must decide whether carbon dioxide is a pollutant subject to regulation under the Clean Air Act. The administration of former President George W. Bush had argued that EPA lacked the authority to regulate carbon dioxide emissions to the atmosphere.

Following the decision, EPA issued four rules. The first was a decision that carbon dioxide does pose a threat to public health. This endangerment finding set the stage for more specific regulations aimed at limiting emission of the greenhouse gas to the atmosphere by both mobile and stationary sources.

In June 2012, in a case called Coalition for Responsible Regulation v. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that the agency had the authority to issue the endangerment finding for carbon dioxide.

The second post-Massachusetts v. Environmental Protection Agency rule limited motor vehicle emissions. This tailpipe rule was finalized in 2010 and was also upheld by the U.S. Court of Appeals for the District of Columbia Circuit in the same case that involved an attack on the carbon dioxide endangerment finding.

The Supreme Court declined to grant review of either of those two aspects of the decision in the Coalition for Responsible Regulation case.

Following the finalization of the tailpipe rule, EPA next moved to regulate carbon dioxide emissions from stationary sources. To do this, the agency first announced a timing rule that specified the chronological conditions under which sources of carbon dioxide would become subject to regulation, making clear that stationary sources of carbon dioxide pollution would not be subject to emission limits until a specific rule focused on that subject was finalized, and then issued a tailoring rule that enunciated the statutory basis of that regulation.

That basis is section 202 of the Clean Air Act, which was also the foundation for the tailpipe rule. It is that linkage that prompted the attack on this part of the Obama administration’s climate change regulatory program that is now under review by the justices.

Under an interpretation of the statute that is several decades old, EPA concluded that, since carbon dioxide emissions are subject to regulation under section 202 of the Clean Air Act, stationary sources of the pollutant are likewise prone to regulation under two separate provisions of the law.

One, called the Prevention of Significant Deterioration of Air Quality program, requires state-issued permits for some stationary sources, such as steel mills and iron foundries, that discharge to the atmosphere more than 100 tons per year of “any pollutant” and other stationary sources that discharge “any pollutant” in an amount exceeding 250 tons per year.

The other is an entire section of the law that also applies to “any pollutant” and similarly imposes the 100 ton-per-year threshold.

The Coalition for Responsible Regulation court upheld this interpretation of the Clean Air Act and it is that interpretation that will now be reviewed by the Supreme Court.

“The crux of the case is going to come down to this question: Are the only sources that are covered by section 165, the requirement of a PSD permit, those that emit NAAQS pollutants?,” Parenteau said.

He was referring to the statutory section of the Clean Air Act that sets forth the prevention of significant deterioration of air quality requirements and the law’s classification of certain pollutants for which a particular kind of permit to discharge is required.

“That’s the industry’s argument,” Parenteau explained. “They say that carbon dioxide is not a NAAQS pollutant and, because they are not a hazardous air pollutant, the sources that emit carbon dioxide are simply not covered by section 165. Well, if you actually look at the text of section 165, you’ll see two things. One, it refers to ‘any air pollutant.’ Many years ago, EPA interpreted that phrase to mean ‘any air pollutant regulated under the Clean Air Act.’ That’s a long-standing interpretation. That’s not new.”

In 1980 EPA said that a stationary source would be subjected to review under the Clean Air Act’s PSD program if it “emit[s] any pollutant in major amounts . . . and [is] located in an area designated attainment or unclassifiable for that or any other pollutant.” The agency explained that “’any pollutant’” means “both criteria pollutants, for which national ambient air quality standards have been promulgated, and non-criteria pollutants subject to regulation under the Act.”

In 2002, during the George W. Bush administration, the agency reiterated this understanding of the Clean Air Act’s reach.

The tailoring rule recognizes that, because the agency’s interpretation of the statutory language could extend EPA’s regulatory reach to thousands of stationary sources, a limit on the size of affected sources is necessary. The rule is limited to new sources that emit at least 100,000 tons of carbon dioxide each year and existing sources that undergo a modification that would cause at least 75,000 tons per year to be discharged to the air.

Industry advocates have argued that EPA lacks the authority to limit the reach of its regulatory program under the Clean Air Act and, moreover, that the PSD provisions of the law on which that program is based are available only if the agency has first decided that the pollutant in question – in this case, carbon dioxide – is part of the National Ambient Air Quality System. The NAAQS, in turn, is limited to the pollutants, like those that make up the components of smog, that pose a danger to an individual’s health when breathed.

Parenteau thinks this argument is not likely to go very far because the language of the Clean Air Act does not limit EPA’s discretion in the way industry asserts it does.

“If you drive down further into section 165, you’ll see in (a)(3), there are three subsets referred to there,” he said. “One is NAAQS, but then it says ‘or’ any other emission standard under the act. My view is that the disjunctive gives EPA the authority.”

The relevant language of section 165(a)(3) of the Clean Air Act provides that

No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless –

. . .

(3) the owner or operator of such facility demonstrates, as required pursuant to section 7410 (j) of this title, that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any

(A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part applies more than one time per year,

(B) national ambient air quality standard in any air quality control region, or

(C) any other applicable emission standard or standard of performance under this chapter[.]

. . .

“I think EPA’s interpretation is reasonable,” Parenteau said. “I don’t see how the court can rule, as a matter of law, that this interpretation is not open to EPA as a matter of law.”

Given the views of at least two of the court’s conservative justices on the question whether to disregard clear statutory language in the face of contradictory or ambiguous legislative history, Parenteau’s point may be well-taken.

Justice Antonin Scalia, for example, has long eschewed the practice of looking to legislative history as a tool for understanding the meaning of a statute. He has, instead, asserted in opinions and books that a record of the debate by legislators on a bill offers no assistance to a judge at all.

For example, in one 2006 case Scalia wrote a concurring opinion in which he asserted that “[t]he use of legislative history is illegitimate and ill advised in the interpretation of any statute.”

Among the justices, Scalia is the most adamantly opposed to going beyond the text of a statute to decipher Congressional intent. Others, however, have also expressed caution about doing so.

For example, Justice Samuel Alito, while a circuit judge, wrote opinions on several occasions in which he explained his view that indicia of legislative intent found in committee reports and the like cannot override the plain language of a statute.

In one 1999 case, he made his view on the issue clear, writing that “even if I were convinced that Congress harbored some general purpose that was inconsistent with those specific provisions, I would follow the specific language that Congress duly enacted.”

Justice Anthony Kennedy was part of the majority in Massachusetts v. Environmental Protection Agency. He also signed on to the majority opinion in the 2011 case of American Electric Power v. Connecticut, which re-affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act.

Given that Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, and Elena Kagan have generally supported federal regulatory efforts relating to environmental protection, and that Ginsburg and Breyer agreed to the Massachusetts v. Environmental Protection Agency majority opinion, few, if any, observers of the court expect them to hold that EPA exceeded its authority in issuing the tailoring rule.

Parenteau suggested that it is possible the Supreme Court acted hastily in deciding whether to review the question of EPA’s authority to link regulation of stationary carbon dioxide pollution sources to the Clean Air Act’s provisions relating to motor vehicle emissions.

“It’s entirely possible that they’ll look at this case, see what EPA has done, and say it’s fine,” he said. “They might also say that EPA should have made a separate determination for stationary sources. To me, that’s a silly way to spend your time, to say you needed to be more clear about this.”

The cases are Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146; American Chemistry Council v. Environmental Protection Agency, No.12-1248; Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. Environmental Protection Agency, No. 12-1254; Southeastern Legal Foundation v. Environmental Protection Agency, No. 12-1268; Texas v. Environmental Protection Agency, No. 12-1269; and Chamber of Commerce of the United States v. Environmental Protection Agency, No. 12-1272.

A decision by the Supreme Court is expected by July 2014.

Image courtesy Wikimedia.

Cross-state pollution rule to get scrutiny by U.S. Supreme Court

The U.S. Supreme Court will decide next term whether a controversial Clean Air Act regulation can be implemented.

Requests for review of a lower court decision striking down the Cross-state Air Pollution Rule were filed by the Obama administration as well as a coalition of non-profit organizations including the American Lung Association and several environmental advocacy organizations.

The U.S. Court of Appeals for the District of Columbia Circuit held in August 2012 that CSAPR  exceeded the Environmental Protection Agency’s authority under the Clean Air Act.

CSAPR would apply to 28 states, all in the eastern and southern regions of the country, requiring them to limit emissions of several pollutants that travel at high altitude across borders into surrounding states.

Environmentalists argue that the rule will save as many as tens of thousands of lives each year because smog and particulate pollution would be reduced. EPA has said that it believes the rule would generate at least $120 billion in annual health and environmental benefits, a sum that is well in excess of the costs of compliance expected to be incurred by regulated entities.

The Supreme Court issued the order granting petitions for certiorari in the case on Monday.

The cases are United States Environmental Protection Agency v. EME Homer City Generation, L.P., No. 12-1182, and American Lung Association v. EME Homer City Generation, L.P., No. 12-1183.

Oral arguments will be conducted after the Court’s 2013-2014 term begins in October. A decision is expected before July 2014.

EPA finalized CSAPR in July 2011. The D.C. Circuit’s order invalidating it also required the agency to reinstate a less expansive rule having the same objective that was instituted by the George W. Bush administration.

Supreme Court dismisses only environmental law case on 2013-2014 docket

The U.S. Supreme Court might not have to decide soon questions relating to environmental law.

The justices dismissed on Monday the only case raising such questions that had been on its docket for next year.

In an unsigned, one-line order the Court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit in U.S. Forest Service v. Pacific Rivers Council and ordered the district court to dismiss the case on mootness grounds.

The Court’s action has alarmed some commentators.

Richard M. Frank, a University of California at Davis law professor, wrote on the respected Legal Planet blog that the order might reflect a belief by environmental advocacy organizations that they cannot get a fair hearing at the Supreme Court.

Frank explained that the plaintiffs in the case, including Portland-based Pacific Rivers Council, entered into an agreement with the United States government not to further challenge USDA Forest Service’s compliance with the National Environmental Policy Act in a dispute over planning of management actions on national forests in the Sierra Nevada mountains.

The Ninth Circuit rejected the 2004 planning effort on grounds that the Forest Service’s efforts did not properly account for the impacts of planned extraction and other activities on fish populations within the national forests in that region.

Historically, NEPA has not faired well in the Court. One analysis demonstrated that environmental groups have never convinced the Court to rule in their favor in a case arising under the law in its entire 44-year history.

Other environmental laws have also not fared well before the Court lately. During this year’s term the justices overturned two Ninth Circuit decisions that enforced the Clean Water Act.