Plain Language, Climate Change, and the Supreme Court

The language of the statute relating to next week’s argument is clear — but there’s a fly in the ointment.

The Supreme Court will be hearing argument next week in Utility Air Regulatory Group v. EPA.  It’s basically a very simple statutory interpretation case, except for two things.  First, it’s about climate change, and nothing about climate change ever seems to be simple and straightforward.  Second, although the language of the statute, prior Supreme Court precedent, and decades of administrative practice support EPA’s position, there’s a very awkward side-effect that EPA has struggled to resolve. That gives the agency’s opponents a hook for their arguments.

The language of the statute could hardly be clearer, given that the Supreme Court has already held in two separate opinions (one of them 6-2), that the term “air pollutant” covers greenhouse gases.  The provision at issue in the case covers any “major emitting facility”, which is explicitly defined as any source emitting more than certain amounts of an “air pollutant.”  Such sources have to use best available technology to deal with “any air pollutant regulated under this chapter.”  That phrase includes the entire Clean Air Act, including provisions that the Supreme Court has already applied to greenhouse gases.  So it seems obvious that greenhouse gases are fully covered by the provision.

In other contexts, the Supreme Court would never have bothered to review this case.  But the issue does relate to climate change, and as I suggested earlier, there is an awkward consequence of EPA’s interpretation.  The statute defines major sources in terms of quantities that make sense of most pollutants but are a mismatch with carbon dioxide, so the result would be to cover a vast and unmanageable number of small facilities.  EPA dealt with the problem by saying it would start with very large sources and gradually phase in smaller ones, but this was a creative approach that the Court may be reluctant to enforce.

However, the challengers have an awkwardness of their own.  They directly challenged EPA’s phase-in plan. The court of appeals held that they lacked standing to raise that challenge.  The reason is that the phase-in rule is actually to their benefit, since otherwise even more sources would be covered.  So now they are forced to make a backdoor argument to come up with a narrow interpretation of references to “any air pollutant” in this particular context.

It’s conceivable that the challengers will win big, perhaps even getting the Court to overturn its previous climate change rulings.  But that seems very unlikely.  Their best chance is a ruling that a source has to be a major emitter of some conventional pollutant like SO2 to be covered, but that once the source is covered in this way it also has to control greenhouse gases.  That would be a setback for EPA, but not a disastrous one.  As usual in the Supreme Court these days, the result may very well turn on Justice Kennedy’s vote.

The advantage of EPA’s interpretation is that it serves the core environmental purpose of the statute as well as possible under the circumstances.  Time will tell how much weight that carries with the Supreme Court.

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Reader Comments

3 Replies to “Plain Language, Climate Change, and the Supreme Court”

  1. Thank you for this nice summary post in advance of the oral argument, Dan.

    I want to note that literally applying the Clean Air Act’s statutory emission thresholds to greenhouse gases may not necessarily cover a vast and unmanageable number of small facilities, in contrast to industry petitioners’ arguments. As the Emmett Center and South Coast Air Quality Management District discussed in our amicus brief to the Supreme Court (http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-1146-12-148-12-1254-12-1268-12-1269-12-1272_resp_amcu_scaqmd-etal.authcheckdam.pdf), EPA and state permitting authorities have a variety of regulatory streamlining tools at their disposal to reduce the number and types of GHG sources subject to permitting requirements, greatly alleviating burdens on permitting entities and regulated parties.

    The real administrative problem was the timing — EPA needed additional time to collect data, and develop, assess, and implement these regulatory tools, and therefore opted to phase sources into the permitting program over time, beginning with the largest sources. Without the “phase-in,” permitting requirements would have applied to all sources at the statutory thresholds on Jan. 2, 2011, resulting in significant burdens. We argue in our amicus brief that those burdens were directly the result of timing and not the result of some inherent mismatch between the Clean Air Act and regulating GHG sources.

    It certainly will be interesting to see what happens in the Supreme Court on Monday.

  2. Prof Farber, it has occurred to me after years of reading Berkeley Blog and your
    blog that not nearly enough professors and scholars are willing to speak out to protect
    our future like you do.

    What concerns me most is that Will and Ariel Durant’s warning that civilizations
    decline because political and intellectual leaders fail to meet the challenges
    of change now applies to us.

    I must conclude that global warming and inequalities threaten our civilization
    worse than ever before, and we are unable to protect our civilization because
    the vast majority of our intellectuals are afraid to speak out like you do.

    Relative to SCOTUS, former Justice Sandra Day O’Connor warned us
    in a 2008 Parade Magazine opinion “How To Save Our Courts” that “politics is
    threatening the rule of law in the U.S. today” and “we must decrease the
    influence of money and politics on judges.”

    Will intellectuals follow your leadership and join with you in your efforts to educate
    and motivate We The People to protect our civilization before it is too late?

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About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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