Regulating Greenhouse Gas Emissions

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On June 23, the Supreme Court once again waded into climate change issues with its decision in Utilities Air Group v. Environmental Protection Agency. This case challenged the EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions from power plants.

Professor-in-residence Joe MacDougald, executive director of the Center for Energy & Environmental Law at UConn Law, believes that the Court’s climate decisions, including this most recent case, are addressing not only climate change but also some more fundamental themes in the law.

Q. Why is climate change a hard problem for the law to address?

A. I tell my Climate Law students that climate change represents one of the “big ones” in law – the hard problems. Our whole legal system is based on drawing fixed lines on the ground. Property rights used to be measured using rivers and streams as boundaries. Even today, surveyors throughout Connecticut think they know where a wetlands boundary is because they measured it. Naturalists know where an endangered species lives because they surveyed it. Homeowners know that beach houses own the property in front of them as far as the mean high tide line. Climate change challenges the static boundaries that make up legal rights, as rivers, animal ranges, and sea levels move more rapidly than ever before. What if the high property tax-paying coastal properties become less viable over time? What if an entire village in Alaska, like the native village of Kivalina, has to move because of sea level rise? Who bears the burden for a climatic harm that has been building up over centuries? And finally, how should the law address man-made emissions of greenhouse gases, the primary cause of climate change?

Q. So how has the law responded?

A. The “answer a question with a question” reply to this is “Which law?” The media tends to talk about “environmental law” as if it were a monolithic structure – but it is more like the ocean, with whole ecosystems existing at different depths, involving policy implications from environmental, energy, land use, tax, and insurance law, just to name a few. States, individually, have largely responded to climate change by focusing on renewable energy incentives in hopes of reducing greenhouse gases. Here in the Northeast, our states have responded collectively, forming a multi-state greenhouse gas cap-and-trade system.

However, while the states have been active, our federal government has been largely absent from climate policy development, enacting a few renewable energy incentives but doing very little about emissions. The one truly substantive change in national policy has come not from the Congress but from the Supreme Court via the Clean Air Act. In the 2007 case Massachusetts v. EPA, the Supreme Court held that carbon dioxide emitted from car and truck tailpipes was an “air pollutant” under the Clean Air Act.

Q: Why did the Supreme Court decide in Mass v. EPA that greenhouse gases like carbon dioxide are a pollutant? Don’t we breathe out carbon dioxide all day long?

A. Yes. The result might seem counter-intuitive, but the global harm comes from excess carbon dioxide from burning fossil fuels. The Clean Air Act was not written with climate change in mind, but emissions that cause harm are exactly what it was designed to address.

While it is a long and somewhat complex law, the Clean Air Act allowed the EPA to regulate “emissions [that] cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” “Air pollution” was defined very broadly and “welfare” was specifically defined to include emissions that affect the weather! Faced with the issue, a 5-4 Supreme Court in Mass v. EPA read these definitions and concluded that EPA could regulate greenhouse gases from cars and trucks if it reasonably felt that greenhouse gas emissions were endangering our citizens. But that left a question – what was EPA’s authority to regulate the greenhouse gas emissions from stationary sources, like coal-fired power plants?

Q: So why is Utility Air Group versus EPA important? Why was it big news?

A. Utility Air Group v. EPA (UAG v. EPA) was brought to address this second question – what is EPA’s authority to regulate greenhouse gases in the rest of the Clean Air Act? It is a very important holding, because the Court majority showed some real skepticism about climate regulation, and the decision comes against a background of the Court, Congress, and the Administration arguing and wrestling with the scope of Presidential and Agency authority.

Mass. v. EPA said greenhouse gases (particularly carbon dioxide) from cars and trucks were an air pollutant under the Clean Air Act. Transportation is responsible for only about 20 percent of U.S. greenhouse gas emissions and comes from millions of sources. But electricity generates 32 percent of our greenhouse gases and comes from relatively few sources. It is more efficient for the EPA to focus on emissions from the bigger emissions sources with fewer participants, and the EPA used this first decision to see if the Clean Air Act could be used to regulate power plants.

The basis for the Obama administration’s regulatory strategy to address climate change was simple. If greenhouse gases are “air pollutants” under the part of the Clean Air Act for cars and trucks, then they are “air pollutants” under the part of the Clean Air Act that regulates smokestacks. The UAG v. EPA case brought that entire strategy into question.

Q: Did the Supreme Court agree with their interpretation?

A. Yes and no. They overruled them, but not completely. In one sense, the EPA got the majority of what it wanted: that emitters already regulated under the Clean Air Act now need to use control technology that addresses greenhouse gases.

But the Court decided that new and other sources could not be regulated simply because they have greenhouse gas emissions. On a policy and legal basis, this is the part of the decision that is so important.

In short, the Court decided that while the word “air pollutant” includes greenhouse gases from the cars or from the power plants where the EPA was already regulating emissions for other reasons (the opinion literally calls these “anyway sources”), “air pollutant” could not possibly mean greenhouse gases when that is the sole reason for the regulation. Justice Scalia noted, “The [Clean Air Act] does not envision an elaborate, burdensome permitting process for major emitters of steam, oxygen, or other harmless airborne substances.”

Q: Why does it matter?

A. While some of the news media reported the Supreme Court’s decision as a substantial win for the EPA, because it left the many “anyway” sources – others perceive it, I think correctly, as a cause for concern. Before this case, the state of the law was clear – greenhouse gases are covered by the Clean Air Act. After this case, the situation is now mushier, with greenhouse gases addressed by some parts of the statute and not others. Given this decision, the EPA will of course be more cautious and move more slowly at a time when the harms for the climate are appearing ever more rapidly.

Connecticut residents should be particularly concerned. I was a Selectman in my town during Hurricanes Irene and Sandy. We were without power for more than a week, and people looked to their state and town governments for help. These storms tell us that Connecticut is vulnerable to the more extreme effects of climate change. The Northeast has had a 22 percent increase in “100-year” events over a cycle that is only decades long. A disturbed weather pattern impacts real people, and strengthening our infrastructure will cost us real tax dollars.

Climate change is among the largest crises of our age. Its solution requires concerted effort over long periods of time. Instead, today – after the ruling in UAG v. EPA – we may have some more action but we also have more uncertainty.