No matter how you slice it (and we are all still studying it), yesterday’s Supreme Court omnibus decision on greenhouse gas (“GHG”) regulation (the lead case being Utility Air Regulatory Group v. EPA, No. 12-1146, decided June 23, 2014) is a huge win for the core of the President’s Climate Action Plan and the Environmental Protection Agency’s (“EPA”) implementation of it through the final Rule for new power plants and the proposed Rule for existing ones. Though the case does not directly involve those Rules, the result, rationales, and line-up of the Supreme Court Justices convincingly show that the pair of power plant Rules rest on solid legal ground. The bottom line is that the seven Justices have forcefully upheld the legality of control and regulation of GHGs from power plants under the Clean Air Act.
What the Justices struck down was something the EPA never wanted anyway, i.e., to subject every Dunkin’ Donuts to GHG regulation. The EPA won the day on GHG regulation of so-called “anyway” sources, i.e., those already subject to Clean Air Act regulation. Power plants are the quintessential “anyway sources.” By any fair account, that’s like the EPA “giving the sleeves off their vest.”
And the main opinion giving the green light to GHG regulation of “anyway sources,” like power plants, was written by Justice Scalia. This is the same Justice Scalia who has been the “great dissenter” in Clean Air Act cases. He dissented in the landmark Massachusetts v. EPA case in 2007, which upheld the EPA’s position that GHGs actually are “air contaminants” under the Clean Air Act. He likewise dissented in the recent Homer City Generation v. EPA case, which upheld in toto the EPA’s Transport Rule.
So ignore all the rhetoric you are hearing from some corners crowing that this is a “setback for the EPA” on GHG regulation. It’s nonsense. For those folks, yesterday’s decision is the cue for “Dandy Don” Meredith’s famous crooning of “♫ Turn out the lights, the party’s over. ♫”