The federal government’s power to regulate certain greenhouse gas emissions likely hinges on a single Supreme Court justice.
Monday morning, the high court heard arguments over whether the Environmental Protection Agency can use the Clean Air Act to curb carbon dioxide emissions from some “stationary sources” of pollution, such as existing factories, oil refineries and power plants.
Utilities and industry groups, represented by the Utility Air Regulatory Group, have argued that those measures exceed the EPA’s authority. The Obama Administration, which has turned to the EPA to enforce tighter emissions standards in the wake of partisan deadlock in Congress, has disagreed.
In the court chambers, the decision likely comes down to the body’s sole remaining swing vote: Justice Anthony Kennedy.
“It looks pretty clearly like Justice Kennedy will be the swing vote,” says attorney Robert Percival, an environmental law professor at the University of Maryland, who attended the hearing.
Based on their questioning, traditionally liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan seemed to side with the EPA, observers say. Meanwhile the court's conservative members – Chief Justice John Roberts and justices Samuel Alito and Antonin Scalia – appeared to come down on the side of the utility group. Justice Clarence Thomas "maintained his customary silence,” according to University of California, Davis, law professor Richard Frank, but has regularly opposed federal environmental regulation.
That leaves Kennedy, a Reagan-administration appointment who may ultimately come down on the side of industry, Frank said.
“It was a dramatic moment indeed when Kennedy told Solicitor General Donald Verrilli, EPA’s advocate, that, ‘I have to say, I couldn’t find a single precedent that strongly supports your position,’” Frank described on the law blog and news site Legal-Planet.org.
He went on to predict “a narrow loss for the government,” but one that “provides a temporary setback,” as opposed to “a major, resounding defeat.”
The court made clear that the ramifications of any decision would be narrow in scope. All sides agreed that the outcome will not affect how the EPA regulates motor vehicle emissions, or a new set of stricter regulations for coal-fired power plants that the agency plans to roll out later this year. Instead, a ruling for the utility group would change simply how the EPA issues some construction and operating permits for polluters, and perhaps affect how the agency interprets its role under the Clean Air Act.
Nonetheless, a decision against the EPA would signal a rebuke of President Barack Obama's climate initiatives – a key focus of his second term.
Industry groups such as the American Coalition for Clean Coal Energy have strongly opposed the administration’s push to curb greenhouse gases, arguing that “millions of Americans … will ultimately foot the bill,” according to Laura Sheehan, ACCCE’s senior vice president for communications.
Environmental groups, however, have pushed back. After the arguments Monday, they predicted the court will uphold the EPA’s actions under the Clean Air Act.
“I think it’s much more likely that when they try to get out an opinion, they’ll have to hold up what EPA did,” says David Doniger, an attorney for the National Resources Defense Council.
New York University law professor Richard Revesz offered a similar opinion.
“The regulations will be upheld,” he says. “Congress designed a program specifically for this [with the Clean Air Act]. Once they struggle with all the back and forth, a majority of them [the justices] will come to see that.”
A decision is expected to be handed down by June.