Everybody loves a good sequel. Hollywood and the publishing industry love sequels and have the formula down to a science.
The Supreme Court appears to love a good sequel too. In twenty-eight years since the Supreme Court made it more difficult to discriminate in jury selection, they have taken up almost twenty cases to fill out the details of how that new rule would work in practice. Similarly, almost ten years ago, the Supreme Court decided to return to the original rules on when an out-of-court statement violates a defendant's right to confront witnesses. Over the past ten years, the Supreme Court has heard six cases (and will probably add a seventh case for next term) to figure out how those rules apply to the modern criminal justice system.
Among the cases left on the docket are two very big sequels -- both of which are likely to become major issues in the fall races.
The first of the two is the Employer Mandate cases dealing with the requirement that the insurance policies available to employees must include coverage for contraceptives (a sequel to the 2012 decision upholding the Affordable Care Act). Especially, as seem likely, if the Supreme Court decides this case by applying the Religious Freedom Restoration Act rather than the Free Exercise Clause, the decision will be an easy weapon for both sides in the fall races. If the employees and the U.S. government win, the decision becomes Exhibit A in the fictional "War on Religion" that Faux News tries to push. If the businesses win (especially if it is the five Republican appointees against the four Democratic appointees), it is another example of the Republican War on Women (which is less a war than the indifference of Republicans to the difficulties that women face).
The more interesting case is the Climate Change cases. Back in 2007, the Supreme Court found that the Bush administration was not following the Clean Air Act by ignoring the impact of carbon dioxide and other greenhouse gases on climate change. Since then, the Supreme Court in a first sequel ruled that any regulation had to be through the Clean Air Act, not through a common law nuisance action. Now, in the second sequel, the Supreme Court is examining part of the regulations -- particular the part that impacts power plants and coal.
Since the first ruling, the Republicans have tried to push the meme of a war on coal. This fall, two key Senate races (West Virginia and Kentucky) will take place in states with a significant coal industry. How, the Supreme Court determines the Climate Change cases could have a potential impact on these races. The exact issue in the current case is whether the regulations adopted by the EPA are justified by the Clean Air Act -- specifically whether the finding that carbon dioxide (and related gases) are a pollutant for the purposes of regulating cars also means that they are a pollutant for the purposes of power plants.
There are three possible results in this case. First, the Supreme Court could find that the EPA is correctly applying the Clean Air Act, and that, if anything, it has cut industry a break by phasing in the new regulations. Second, it could find that the EPA, while not compelled to go as far as it has, is still reasonably interpreting the statute. Finally, it could find in one or more ways that the EPA has departed from the statutory language.
From the point of view of the Democratic candidates in Kentucky and West Virginia (both state officials), the best possible result is the first option -- a holding that the EPA is merely doing what the Supreme Court ordered back in 2007. In this scenario, there is an argument that the EPA has had no choice or discretion in the matter and that the problem is not that the EPA is anti-coal but that the current law is anti-coal. In this argument, while it probably was not possible to completely prevent some negative impact on the coal industry, there have been proposed amendments to the Clean Air Act that might have postponed the worst of the impact and given the coal industry time to adjust -- amendments that went nowhere largely because Mitch McConnell blocked them in the Senate (and Shelley Capito joined with her fellow Republicans to oppose them in the House). The question for the fall is whether Democrats in coal states can convince the voters that Republican obstruction of moderate compromise on the Clean Air Act is the equivalent of Nero fiddling while Rome burned. Control of the Senate may turn on this issue.
Last year, I discussed the ruling of the U.S. Court of Appeals for the District of Columbia Circuit upholding the EPA's first round of regulations on greenhouse gases. To quickly summarize, the EPA had issued four sets of regulations: an endangerment finding (concluding that greenhouse gases did contribute to climate change and therefore met the definition of a pollutant for purposes of mobile sources); a "tailpipe" rule (establishing regulations to reduce greenhouse gas emissions from motor vehicles and other mobile sources); and "timing" and "transition" rules governing emissions from stationary sources (e.g. power plants).
Not too surprisingly, the plaintiffs in those cases -- several "red" states and business groups separately filed requests for the Supreme Court to review different aspects of the D.C. Circuit's ruling. Last Tuesday, the Supreme Court decided which parts of the case it would take. The Supreme Court denied three of the nine applications in their entirety. For the remaining six, the Supreme Court only took one issue -- whether the EPA's traditional position that, if a substance qualifies as a pollutant for mobile sources, the EPA is also authorized to regulate emissions of that substance from stationary sources.
By limiting the case to this one issue, the Supreme Court let stand the finding of the EPA that greenhouse gases are a pollutant and the finding that the Clean Air Act requires the EPA to regulate motor vehicles to reduce the level of greenhouse gases. In doing so, it has dramatically undermined the false claim that the EPA's regulation of greenhouse gases is outside the scope of the EPA's authority.
More significantly, the one issue on which the Supreme Court did grant review is not a new issue and is not limited to greenhouse gases. Instead, it is a position that the EPA has consistently applied for the forty years of its existence. The consistent interpretation of the Clean Air Act by the EPA is an argument in favor of the majority upholding the current set of regulations. A contrary interpretation would dramatically change how the Clean Air Act is applied across the board and would call into question multiple regulations, but only on technical grounds. The EPA's current bottom line is that the definition of a pollutant is the same for all parts of the Clean Air Act so a finding that a substance is a pollutant for one part of the Clean Air Act is sufficient to allow regulation under all parts of the Clean Air Act. If the Supreme Court finds that this is not the case, presumably the Supreme Court would explain how the requirements for the different parts of the Clean Air Act differ. As such, ultimately, most if not all, of the regulations governing various pollutants from stationary sources would be re-adopted after those additional findings where made including the regulations on greenhouse gases.
Bottom line is that last Tuesday's ruling was a big setback to climate change deniers; now if only that message would sink in on Capitol Hill.
One of the issues in this campaign is the allegation that the EPA/Obama Administration has usurped its authority to go after coal and oil on climate change. Like many of the arguments from the Republican camp, the Republican think they can get away with this big lie because most people do not know how a regulation comes into place or the history that led to the current EPA action.
The basic rule in this country is that Congress (or a state legislature) can delegate the authority to write regulations to an adminstrative agency like the EPA. To do this, the law granting that authority must give specific guidance on when and how the agency is to adopt regulations. Typically, especially for an agency dealing with scientific issues like the EPA, the regulation process begins with an investigation into the facts of an issue followed by an initial proposal followed by a public comment period before a final regulation is adopted. After the final regulation is adopted, someone harmed by the regulation can seek judicial review over whether that regulation is supported by the evidence and complies with the grant of authority to the agency.
In the case of climate change, ther are several key statutes governing the scope of the EPA's authority. The first is the part of the Clean Air Act addressing EPA regulations of motor vehicles: US Code, Title 42, Section 7521(a)(1). Under this statute, the EPA must establish standards governing the release of air pollutants that "may reasonably be anticipated to endanger public health or welfare." The definition section of the Clean Air Act (Section 7602) defines air pollution as "any . . . substance or matter emitted into the ambient air," and defines effects on welfare as including effects on climate. The EPA has also traditionally taken the position that, if something is an air pollutant for motor vehicles, it is also an air pollutant for stationary sources (offices, factories, power plants, etc.). For stationary sources, there is a requirement for a pemit based on the nature of the stationary source and the amount of pollution released (either 100 tons per year or 250 tons per year based on the nature of the source) under Sections 7475, 7479(1), and 7602(j).
The process began in October 1999 when a coaltion of environmental groups and green industry groups filed a petition asking the EPA to investigate and make findings on greenhouse gases and climate change. Given the time involved in the regulatory process, the EPA was not able to conclude this process during the Clinton Administration. Ultimately, the G.W. Bush Administration issued its decision in September 2003 finding that it did not have the authority to issue greenhouse gas regulations and, alternatively, finding that it would be unwise to issue such regulations.
In response to this finding, a coalition of environmental groups asked for judicial review. During the judicial review, these groups were joined by several states and cities (with some business groups and states joining in support of the EPA). Among the state in support of the EPA were several states with Republican Governors including Massachusetts under then-Governor Mitt Romney. This petition was denied by a panel of the Court of Appeals for the DC Circuit in a split decision (with two judges in separate opinions supporting the EPA and one judge supporting the challengers).
Today the Second Circuit issued an opinion in a case involving several states and organizations against the biggest utilities in the country. In this case, the plaintiffs are alleging that, by producing excessive carbon dioxide and other greenhouse gases, these utilities are creating a public nuisance. The district court had dismissed the case on several grounds of which two are important here. First, the district court found that the issue of global warming was a political question. Second, the district court found that the Clean Air Act preempted traditional state and federal common law claims like public nuisance.
The Second Circuit reinstated the case. In particular, they found that the issue was not a political question just because the political branches might at some point choose to pass or not pass legislation on the issue. They also found that the Clean Air Act was not specific enough to clearly preempt common law claims. They also found that the regulations being enacted in response to the U.S. Supreme Court decision of two years dealing with greenhouse gases and motor vehicles were still in an early stage and, presently, only covered motor vehicles, not stationary sources (like power plants). As such, these regulations also do not yet preempt common law claims.
The bottom line with both this decision and the previous decision by the U.S. Supreme Court (which all but required the EPA to regulate greenhouse gases from motor vehicles) is that environmentalists are making some progress in the courts on placing restrictions on carbon dioxide. Obviously, the judicial process is slow and there is no guarantee of a win in the end. On the other hand, in the judicial process, facts do actually matter and the evidence strongly favors tougher regulations.
As such, both environmentalists and the utilities have to be asking which side loses if climate control legislation fails. My personal belief is that legislation might produce a more workable scheme than a court decree will. However, a court decree could also impose tougher rules than politicians would be willing to support. If utilities do not tell the Republicans that they need to be at the table, the failure of climate change legislation could ultimately backfire on the utilities.