Conservative Justices Give the Government a Victory on Climate Change

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Despite Scalia’s rhetoric, the justice hands the government a victory on greenhouse gases. Jim Urquhart/Reuters

The Supreme Court has ruled that the federal government can legally fight climate change through regulation. On Monday, the Supreme Court signaled that it will be unlikely to block federal regulations by which the government is trying to tackle this divisive issue.

In a 7–2 opinion delivered by conservative Justice Antonin Scalia, the court confirmed that the Environmental Protection Agency (EPA) has the power to regulate greenhouse gases from stationary sources like factories and power plants under a provision of the Clean Air Act, though the justices’ reasoning is a little different from the argument the agency has been using to justify the legality of its regulations.

The ruling has far-reaching implications way beyond today’s judgment as it suggests that when the court considers future cases challenging the EPA’s actions on climate change the EPA can depend upon a majority of the court supporting them.

While the new ruling applied to previous regulations, environmental groups are concerned about new regulations on carbon emissions from power plants that the EPA issued on June 2—sparking a largely partisan debate it is widely assumed will ultimately end up before the court. Though the new regulations are carried out under a section of the Clean Air Act not at issue in Monday’s case (Utility Air Regulatory Group v. EPA), the court’s decision signaled that a clear majority feel the EPA is entitled to regulate greenhouse gases—and thus fight climate change—under the Clean Air Act.

“The decision builds on the court’s prior decisions upholding most important Clean Air Act authority in the fight against global warming—EPA’s responsibility to set national standards to curb the carbon pollution emitted by automobiles and power plants,” David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, an environmental group heavily invested in the new power plant regulations, said Monday in response to the opinion. “The EPA has just proposed standards to reduce carbon pollution from power plants, and that critical work will move ahead to protect Americans from the worst impacts of climate change.”

Though the opinion is a win for the EPA, environmental law expert Michael A. Livermore said Scalia’s opinion could sow confusion about who really won. That’s because, though Scalia handed a win to the EPA, the rhetoric in his opinion reads as a fiery reprimand of the agency for “laying claim to extravagant statutory power over the national economy.”

“I think Scalia is acknowledging that this is the road that we’re walking down” in terms of allowing the government to regulate greenhouse gas emissions, but “this is just his personal howl of protest against the way things are going,” said Livermore, who teaches at the University of Virginia School of Law.

“There’s a big center of gravity on the court that recognizes the EPA’s authority to move forward,” Livermore said. Though conservatives like Scalia don’t seem entirely comfortable with the agency regulating greenhouse gases, “it appears they are not going to interfere too much with the actual implementation of the [Clean Air] Act—even if they occasionally reprimand the agency in overly harsh language.”

Two other conservatives on the court, Clarence Thomas and Samuel Alito, dissented in Monday’s opinion, signaling that they are the two members of the court completely against the EPA regulating greenhouse gases. Conservatives like Kennedy, Roberts and maybe even Scalia, however, appear willing to let the EPA address climate change.

Looking ahead to how the court will one day come down on the new power plant regulations—a key piece of President Obama’s legacy and the United States’s single biggest action on climate change during his presidency—Livermore says environmentalists should be optimistic.

The ultimate question this case and future cases will settle is, as Livermore put it, “Is the agency going to be able to make the various structures of the Clean Air Act work for greenhouse gases?”

In light of Monday’s ruling, as well as a case the EPA won earlier this year at the high court, Livermore says the answer is likely yes.

"I read this case as basically saying, 'Yes, either the court will read—or it will allow the EPA to read—the statute in order to make it work for greenhouse gases,'" he said. "'We’re either going to let the agency figure it out, or we are going to supply the legal reasoning, but ultimately we’re going to get to a reasonable situation and we’re not going to abandon the project of regulating greenhouse gases.'"

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