Today the U.S. Supreme Court hears oral arguments in a case challenging the Environmental Protection Agency's proposed greenhouse gas regulations.
The Issue in Front of the High Court: The Tailoring Rule
Today’s challenge comes from six different lawsuits that have been “rolled into one.” Texas is one of the big plaintiffs, but the American Chemistry Council is the primary one. At issue is EPA's “tailoring” rule [pdf], a solution that has placed the pro-regulation and anti-regulation camps on strange sides of the argument.
The Clean Air Act, under which the EPA has based its proposed regulations, requires that limits on stationary sources of pollution be applied to all facilities that emit more than 100-250 tons of a pollutant per year. That threshold makes sense for sources of traditional pollutants like sulfur oxides (SOx) and nitrous oxides (NOx) but not for carbon dioxide "because [greenhouse gases] GHGs are emitted in much higher volumes" [pdf].
Using that threshold would entrain thousands of small mom-and-pop-type operations (e.g., bakeries, dairy farms, ranches), "greatly increasing,” to quote EPA [pdf], ”the number of required permits, imposing undue costs on small sources, overwhelming the resources of permitting authorities, and severely impairing the functioning of the programs.”
To avoid such “absurd results” [pdf], EPA tailored the thresholds to include only large sources of greenhouse gases, specifically sources that exceed some 75,000-100,000 tons per year. This tailoring would cover [pdf] some “70 percent of the greenhouse gas pollution from stationary sources.” Smaller emitters would be phased in over time.
Regulations Make Strange Bedfellows
Normally you might expect pro-regulation forces to oppose a rule that limits the scope of a regulation as the tailoring rule does. Similarly, you would expect anti-regulation forces to favor a rule like the tailoring rule, which limits the extent of the regulations. However, in this case just the opposite has happened. And the rule has become the proxy battlefield in the larger war for and against greenhouse gas regulations.
Recognizing the necessity to avoid widespread and onerous regulations on small businesses in order to make more greenhouse gas regulations politically palatable, the pro-regulation forces are defending the tailoring rule and so are in the strange position of favoring less regulation (to avoid the “absurd results”). And, recognizing that the tailoring rule makes greenhouse gas regulations workable, the anti-regulation forces are hoping to convince the Supreme Court to overturn the rule, essentially forcing EPA to expand its regulation of emissions to include small sources and thus, at least in the short run, potentially hurt its own constituency.
The arguments that will be presented before the Supreme Court today are already available on the Web for your reading enjoyment in the form of briefs filed with the high court. If you happen to take a gander, you'll see that there's some disagreement on the part of the opposition to the tailoring rule as to whether this is the most egregious power grab by the U.S. executive branch in the history of the nation or just a really, really egregious power grab.
In the Worst Ever Camp
[EPA's] inexorable expansion of control represents an unprecedented political power grab over the energy production and consumption that fuels our economy and makes our jobs, opportunities and living standards possible.
--Southeastern Legal Foundation, Inc., et al., in a brief filed with the U.S. Supreme Court [pdf], Dec. 16, 2013
EPA's Tailoring Rule is one of the most brazen power grabs ever attempted by an administrative agency.
--Utility Air Regulatory Group, et al., court brief [pdf]
In the Really, Really Egregious Camp
This case involves perhaps the most audacious seizure of pure legislative power over domestic economic matters attempted by the Executive Branch since Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
--Utility Air Regulatory Group, et al., December 9, 2013, court brief [pdf]
Youngstown Sheet & Tube v. Sawyer, by the way, was a case brought against the federal government when President Truman seized the steel mills during the Korean War. I guess the folks at EPA can really thank their lucky stars for Give-em-Hell, Harry.
But There are Some (Kinda) Kind Words, Too
EPA is acting as a benevolent dictator rather than a tyrant.
--Coalition for Responsible Regulation, Inc., et al., in a court brief [pdf] filed with the U.S. Court of Appeals for the D.C. Circuit, June 20, 2011
I guess the folks at EPA can take some solace in the opposition's beneficence in seeing benevolence in the agency's bent toward dictation.
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