The last two weeks delivered some important legal news. A federal appeals court upheld the Environmental Protection Agency’s authority and responsibility to control climate pollution on June 26. Two days later the United States Supreme Court upheld the Affordable Care Act (also known as “Obamacare”). It is clear that the former relates directly to clean energy and environmental law. It is not so clear how the latter relates, but it is a popular topic that is worth mentioning.
First climate change.
The United States Court of Appeals for the District of Columbia ruled that EPA’s greenhouse gas (“GHG”) permitting program is a valid exercise of EPA authority. This ruling helps put to rest the loud and uninformed criticism of EPA’s so called “unconstitutional power grab” and helps stand up EPA’s first attempt to require permits for climate pollution.
The EPA permitting program is often referred to as the “Tailoring Rule” but, in fact, the Tailoring Rule is only one part of EPA’s GHG permitting system. A very good explanation of the entire program is available in the first few pages of the opinion accompanying the DC court’s ruling and another description is available on our Learn About page. All the details are too much for this post, but here is a *short* explanation.
The U.S. Supreme Court’s 2007 ruling in Massachusetts v. EPA began a cascade of legal triggers. First EPA was required to analyze the causes of and risks from climate change. EPA complied and based on the vast evidence concluded that climate change endangers public welfare. This was called the “Endangerment Finding.” The Clean Air Act (“CAA”) requires EPA to establish motor-vehicle emissions limits for “any air pollutant…which may reasonably be anticipated to endanger public health or welfare…” (emphasis added).
Thus, once the Endangerment Finding was complete the CAA mandated that EPA set limits on GHGs from motor vehicles. These standards were called the “Tailpipe Rule” and GHGs became, for the first time, regulated by the CAA. Another section of the CAA says that “any air pollutant” regulated by the CAA must also be subject to permitting under the Prevention of Significant Deterioration (“PSD”) and Title V sections of the law. This automatic permitting requirement for any source emitting more than 100 or 250 tons per year of a regulated pollutant (depending on type) would normally be triggered as soon as a new rule became final, but GHG emissions are so prevalent that permitting could become an impossible undertaking.
Understanding the potential impending burdens, EPA strove to reduce the workload required by industry and states by promulgating two additional rules. The “Timing Rule” clarified that GHG permitting would not start until January 2011, the “Tailoring Rule” limited the application of GHG permitting to only the largest emitters (new sources that emit at least 100,000 tons per year or 75,000 tons per year in the case of modifications).
Regardless of these efforts, a slew of states and industry groups sued EPA in an effort to undermine the requirements of the CAA. These groups challenged every single aspect of this process, but the most interesting argument relates to the Tailoring Rule.
Without the Tailoring Rule the number of permits under the PSD program would have jumped from 280 to over 81,000 each year. Under the Title V program permits would have increased from 14,700 each year to 6.1 million. The challengers thought that if they could get the Tailoring Rule overturned, the resulting chaos would somehow have worked in their favor. For all their claims that action on climate change is risky and bad for business, they were certainly willing to take a major risk here.
The court dealt with this and the other arguments in detail, but I will spare you that detail. In the end, the court found that EPA’s process was complete and legal, that their scientific analysis was reasonable and that there was no basis for overturning any of the rules in this cascade. The nation’s first ever GHG permitting limits are left standing.
Now to health care.
When the Supreme Court ruled in support of President Obama’s health care law they did rule against two of the President’s arguments. The Court held that Congress could not use the Constitution’s Commerce Clause to force people into commerce and also that Congress cannot force states into expanding their Medicaid programs by threatening to withhold Medicaid funding for inaction. On its face this has nothing to do with environmental law, but some clever academics discovered a possible connection: The Commerce Clause authorizes much of the CAA, so there are possible repercussions to CAA implementation as a result of this ruling, none of which are yet fully understood.
There are a number of opinions on this issue. See, here and here for instance. I tend to agree with those who think that the health care ruling will not have a significant impact on environmental law. CAA requirements do not usually force polluters into commerce where they have to buy something (as the Affordable Care Act’s “individual mandate” required individuals to buy health insurance.) Rather, the CAA generally sets emissions standards and lets polluters decide how to comply. Some people are also concerned about the impacts of this ruling on transportation funding that is directed to cities and states to help with air quality compliance, but that is a topic for another day and groups like NRDC will undoubtedly be tracking these developments.
Despite the recent good news from the courts on both health care and climate pollution, there are still other important environmental safeguards facing major legal challenges, from mercury to traditional air pollutants. Opponents of environmental safeguards and clean energy are aggressively fighting everything in order to maintain the status quo. But change, as we’ve seen, is not only legal, it is also inevitable and essential.
Ulla Reeves contributed to and edited this post.