WASHINGTON — For the second time in two months, the U.S. Supreme Court is taking up a case examining whether the Obama administration
by-passed Congress in an effort to unilaterally advance its political
and policy objectives.
At issue in Monday’s oral argument is whether the Environmental
Protection Agency usurped legislative power reserved to Congress when
EPA officials wrote broad new rules regulating the emission of
greenhouse gases under the Clean Air Act.
Last month, the high court heard argument in a case testing whether
President Obama acted properly when he ignored pro forma sessions of
the Senate, declared Congress to be in recess, and then used his
recess appointment power to unilaterally appoint three members to the
National Labor Relations Board despite Senate objections to his
President Obama and his administration have also been criticized for
postponing statutory requirements and deadlines in the healthcare
reform law, the Affordable Care Act, and in exercising “prosecutorial
discretion” to selectively enforce U.S. immigration laws.
The legal challenges at the Supreme Court aren’t about the
administration’s political priorities; rather they are about the
mechanisms the administration has chosen to achieve its priorities and
whether those mechanisms comply with constitutional and statutory
limits on executive power.
The Clean Air Act was passed in 1970 to reduce and regulate the amount
of air pollution from factories and cars. It sought to reduce the
release of harmful pollutants like carbon monoxide from car exhaust
and sulfur dioxide from fossil-fuel power plants.
In more recent years, environmentalists concerned about global warming
pushed to expand the scope of the Clean Air Act to address the release
of greenhouse gases that they say are contributing to potentially
catastrophic global warming.
The EPA under President Bush resisted these efforts, insisting that
the scientific data about global warming was inconclusive.
Environmentalists sued to force EPA to take action, and in 2007 the
Supreme Court ruled 5 to 4 that greenhouse gases could be regulated
under the Clean Air Act if the EPA determined that they posed a danger
to human health or welfare.
After President Obama’s election in 2008, his administration
jettisoned the old EPA position and moved aggressively to expand the
scope of the Clean Air Act to regulate the release of greenhouse
It took this action in phases. The first phase involved using the
Clean Air Act to limit greenhouse gas releases from new cars and light
It is what happened next that forms the basis for the legal challenge
now before the high court. After establishing the so-called Tailpipe
Rule limiting greenhouse gases from new motor vehicles, the EPA
adopted an expansive interpretation of the Clean Air Act to increase
its regulatory authority over a wider range of greenhouses gas
emitters such as factories and power plants.
Predictably, business and industry groups and some states objected to
this expansion of federal power, arguing that Congress did not intend
for the Clean Air Act to be used to regulate greenhouse gases.
Such an expensive and potentially economically-disruptive broadening
of federal regulatory authority would require clear authorization from
Congress, they argued.
The EPA disagreed. Under the agency’s reading of the Clean Air Act,
once greenhouse gases are regulated in one part of the Clean Air Act
(such as for cars and light trucks), the law requires that greenhouse
gases be regulated under other parts of the statute as well.
But there is a problem with this approach. When Congress wrote the
Clean Air Act it established thresholds for regulated pollutants to
ensure that the EPA concentrated its pollution-fighting efforts on
major sources of harmful emissions. Congress determined that the EPA
could only regulate those facilities emitting more than 100 tons per
year of certain pollutants. In some cases Congress raised the
threshold to 250 tons per year.
These thresholds work fine for toxic substances like carbon monoxide
from car tailpipes or sulfur dioxide from smokestacks.
The problem with these thresholds when applied to a greenhouse gas
(like carbon dioxide) is that greenhouse gases are emitted at much
higher volumes than traditional air pollutants. One hundred tons per
year of sulfur dioxide is the rough equivalent of 100,000 tons per
year of carbon dioxide, experts say.
If the EPA followed the 100-ton and 250-ton limits set by Congress in
the Clean Air Act, air pollution regulations of greenhouse gas
emissions would extend well beyond the largest factories and power
plants that are now targeted for regulation.
At those levels most large buildings in the United States, including
hospitals, churches, medium-sized businesses, and even some big homes
would require an operating permit from the EPA.
The burden wouldn’t just fall on property and business owners. The
government, too, would face hardship administering such a sprawling
Instead of issuing 280 preventative permits per year, the EPA would
have to issue 81,000, according to estimates. Under another section of
the Clean Air Act, the EPA’s workload would rise from 14,700 permits a
year to 6.1 million permits.
The effort would require an army of bureaucrats and would cost state
and federal regulators billions of dollars in new administrative
Recognizing the absurdity of following the existing 100-ton and
250-ton thresholds set by Congress, the EPA decided to set its own
threshold. It established a new limit for greenhouse gases at 100,000
tons per year.
An array of business and industry groups sued, seeking to block the
Critics argued that the agency wasn’t enforcing the law, it was
rewriting it. It is up to elected representatives in Congress to set
such limits, they said. If existing limits in the statute don’t work,
the EPA should ask Congress to revise the thresholds in the Clean Air
The Obama administration defended its expansive interpretation of the
Clean Air Act, insisting that the EPA had broad discretion to
recalibrate the thresholds to facilitate an effective regulation of
A federal appeals court agreed with the EPA and upheld the
administration’s position. Now the case is before the high court.
The key question before the court is whether the Obama EPA overstepped
its authority when it sought to expand greenhouse gas regulations to a
wide range of sources of such emissions.
Lawyers challenging the EPA’s regulations say the agency is misreading
the Clean Air Act, ignoring key limits written into the law by
Congress, and violating the Constitution’s checks and balances.
“This case involves perhaps the most audacious seizure of pure
legislative power over domestic economic matters attempted by the
Executive Branch since [President Truman's failed effort to take over
the steel mills],” Shannon Goessling wrote in a brief on behalf of the
Southeastern Legal Foundation.
“This action is an unabashed assault on the foundational structure of
the Constitution,” Ms. Goessling said.
Solicitor General Donald Verrilli defends the administration’s
regulatory approach. EPA officials acted within the parameters of the
Clean Air Act when they created the new regulations, he said in his
The agency was acting prudently by deciding to phase-in the threshold
for greenhouse gases by applying the new regulations to only the
largest emitters, he said. He noted that “absurd results” would have
250-ton thresholds for greenhouse gases.
“Although the Congress that enacted the CAA [Clean Air Act] might not
have appreciated the possibility that burning fossil fuels could lead
to global warming, Congress drafted the CAA in broad terms to confer
the flexibility necessary to forestall obsolescence,” the solicitor
The CAA may not be perfectly tailored to dealing with greenhouse
gases, Mr. Verrilli conceded, but the EPA’s approach is the best way
to implement Congress’s goal of protecting public health and welfare
from the effects of air pollution, including adverse effects on
weather and climate.
Those challenging the new regulations say that by writing its own
thresholds for greenhouse gases the Obama administration is reserving
for itself the power to decide when to expand its regulatory authority
deeper into the U.S. economy, to smaller businesses, hospitals,
churches, and even homes.
Those decisions and judgments should be made by the legislature, not
the regulatory agency empowered to enforce those same regulations,
The case is comprised of six different legal challenges consolidated
for high court review. The lead case is Utility Air Regulatory Group
v. EPA (12-1146).
A decision is expected by late June.