Carbon Copy II: Six Quick Impressions from Climate Change's Latest Day in the Supreme Court

Here are six quick reactions to the oral arguments presented this morning in the Supreme Court’s latest case on climate change and the Clean Air Act, Utility Air Regulatory Group v. EPA.  (See my post from last Friday for more background.)

• No going back on Massachusetts v. EPA.  Chief Justice John Roberts made that clear early on, saying that even though he was a dissenter in 2007,  the Court isn’t going to reconsider Massachusetts, or the follow-on decision in American Electric Power v. Connecticut, which establish EPA’s authority to set Clean Air Act standards for both vehicles and factories that emit carbon pollution that drives dangerous climate change.  This case remains focused on the secondary question of the scope of the Act's permitting provisions.
• Climate science not on trial.  The Court declined to hear challenges to the science linking carbon pollution and climate change, and none of the Petitioners tried to pick a fight there.  Solicitor-General Donald Verrilli emphasized that greenhouse gases pose possibly the gravest threat to health and welfare of all the pollutants EPA addresses.  Justice Antonin Scalia asked sarcastically if sea level rise was occurring anywhere but in Massachusetts (a reference to the standing decision in the 2007 case), but no one seriously challenged EPA on scientific issues this time. 
• A rough ride for Petitioners.  Justice Elena Kagan pressed industry attorney Peter Keisler hard on the inconsistencies in the petitioners’ theories.  She asked him to pick one of the four different legal interpretations offered in their briefs.  He seemed to respond with a fifth one.   Kagan asked why EPA didn’t deserve the widest possible deference under Chevron v. NRDC to resolve conflicting statutory provisions in the setting of greenhouse gases.  She asked if EPA’s approach to the permit provisions – covering greenhouse gases but focusing on the largest emitters – wasn’t truest to the statutory language and congressional purposes.   
• Tough questions for the Solicitor-General.  Solicitor-General Verrilli came in for his share of tough questions, mainly probing whether EPA should have excluded greenhouse gases entirely, despite the statutory phrase “any air pollutant,” rather than modify the statutory threshold numbers of 100 and 250 tons per year.  He forcefully responded that EPA faced multiple statutory commands – cover all pollutants, cover all sources above those tonnage levels, and issue permits within a year – and that EPA’s approach best resolves the conflicting statutory commands.  Justice Kagan echoed that line of thinking.  Justice Stephen Breyer asked if this wasn’t the approach that does the least violence to the statutory terms.
• Getting to five.  Kagan’s line of questioning drew support from at least three others:  Justices Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.  Justice Anthony Kennedy, as usual, seems to be the key.   His most significant question may have been to ask Verrilli for a case that best supports his position.  The Solicitor-General responded with Morton v. Ruiz (a case allowing the government leeway to set priorities among claimants, when there are not enough funds to satisfy all of the beneficiaries’ claims).  If Kennedy goes with Kagan, it appears EPA's position would command a majority.
• Compromise?  Justice Roberts was intrigued with a possible compromise, where carbon pollution is subject to the requirement for “best available control technology” (BACT) for sources that need permits because of their emission of other pollutants, but not when CO2 is the only pollutant emitted in major amounts.  That approach would cover power plants and other very large sources that always need PSD permits, but it would leave out a good many others.  This compromise is hard to square with the statutory language – it’s one of the four interpretations Justice Kagan skeptically addressed at the outset.  So it’s not clear how many votes that approach could command.

So we’ll have to wait and see for the final outcome on the scope of the Clean Air Act’s permitting provisions.  But now more than ever, it’s clear that EPA’s authority to set standards for carbon pollution – the basis of President Obama’s Climate Action Plan – is firmly settled on solid ground.