USSC Hears Case on EPA Power

The Supreme Court heard oral arguments yesterday in a case that revolved around the EPA’s authority to regulate greenhouse gases under the Clean Air Act.

In 2010, the EPA regulated emissions from vehicles in its so-called “tailpipe rule.” The agency said that promulgating the tailpipe rule triggered authority within the Clean Air Act that stationary sources that also emit GHGs — such as factories and plants, but even stoves, fireplaces, and campfires— can be regulated.

The issue in the case is basically whether it is permissible for the EPA to regulate stationary sources based on this separate regulation of vehicles.

Notably, that part of the Clean Air Act that would, according to proponents, justify greenhouse gas regulation sets emission thresholds at such low levels that schools and small businesses would be covered by the rule. To remedy this, the EPA simply raised those emissions thresholds. Was that a reasonable move, or an illegal exercise of authority? Swing vote Justice Anthony Kennedy told the solicitor general, “I couldn’t find a single precedent that strongly supports your position,” and Justice Alito said that there existed no precedent for such unilateral revision in “the entire history of federal regulation.”

Those who heard the oral argument report that Kennedy appears once again to be the swing vote on the issue. The Washington Times has the story here, and SCOTUS Blog has even more details here and here.

The decision should be out later this Spring.

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