WSJ Mischaracterizes Upcoming Supreme Court Case About Greenhouse Gas Emissions

In a misleading editorial about the Supreme Court's decision to hear a case on the Environmental Protection Agency's (EPA) ability to regulate greenhouse gas emissions, The Wall Street Journal accused the agency of “regulatory overreach,” despite decades of legal precedent that permits such discretion.

On October 15, the justices accepted for review a narrow legal question from a broad industry-led attack on the authority of the EPA to fight climate change under the Clean Air Act (CAA). The WSJ celebrated this limited decision despite it being yet another in a long line of obstructionist lawsuits filed against the federal government by Republican-led states.

From the October 15 editorial, which applauded "[s]tate attorneys general [who] have challenged the Administration's agenda on everything from ObamaCare to the plan to get rid of the Yucca Mountain waste depository":

The Obama Administration's Environmental Protection Agency has spent the last few years stretching its legal authority, and now it will have to defend its actions before the Supreme Court. On Tuesday, the Justices agreed to review how far the agency can go in regulating greenhouse gases under the Clean Air Act.

In Utility Air Regulatory Group v. EPA, the Court consolidated six cert petitions and will consider a single legal question: Does the EPA's authority under the Clean Air Act to regulate greenhouse gas emissions from “mobile sources” like cars also apply to emissions from “stationary sources” like power plants? To put it another way: Can the EPA make up the rules as it goes along?

This story started in 2004, when environmentalists sued to force the EPA to regulate CO2, even though the Clean Air Act never defined it as a pollutant. The Justices nonetheless ruled 5-4 (Massachusetts v. EPA, 2007) that the agency could do so for mobile sources such as cars under Title II of the Act. Gentleman, start your regulatory engines.


When Congress wrote the Clean Air Act, it created numerical thresholds specifying that the government could only start regulating after a plant was shown to be putting out more than 100 tons a year of a pollutant.


By the EPA's own estimates, applying that 100-ton threshold to greenhouse gases would require some six million buildings to get environmental permits, including such grand polluters as churches and farms. Recognizing that such a rule would create “absurd results” like shuttering the entire economy, the EPA rewrote Congress's numbers and adjusted the threshold to 75,000 tons from 100 tons. EPA's clear political purpose was to escape a large political backlash to its new rules by unilaterally limiting their reach.

The EPA says that its rewrite is no big deal, and that plaintiffs should have no standing to sue since the agency was doing everyone a favor by lifting the thresholds. But regulatory agencies don't have the power to rewrite laws on their own without the authority granted by Congress.

However, the WSJ editorial fails to mention that Congress has granted the EPA authority to enforce the Clean Air Act (CAA) - including the power to promulgate rules to implement it. 

Because carbon dioxide and other greenhouse gases have been recognized by the EPA and outside scientists as “pollutants,” an appellate court rejected the industry argument that the plain text of the CAA should now be ignored in favor of utilizing a different -- and redundant -- regulatory process. As explained by Ann Carlson, professor of environmental law at UCLA School of Law:

The [D.C. Circuit] Court of Appeals below found that EPA's view is not only reasonable but required by the language in the ... portion of the statute that says the following: “the proposed [new] facility is subject to the best available control technology for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility[.]”


[T]here are at least two significant problems with the industry position. The most obvious one is the plain language of the statute saying that best available control technologies must be used for each pollutant subject to regulation under this chapter. The plain language ought to pose significant problems to Justices like Scalia, Thomas and Roberts, who view themselves as faithful to a textualist approach to statutory interpretation. The second one is that even if there is some ambiguity about whether the language applies to [the pollutants the EPA is regulating]...[u]nder Supreme Court doctrine, EPA's interpretation of the statute is entitled to significant deference by the Court. As long as the agency's interpretation is reasonable, the Court should uphold it.

Far from “stretching its legal authority,” as the WSJ erroneously asserts, the EPA has boasted an impressive win-loss record in its defense of the CAA in court since President Obama took office.

By utilizing the same reasoning that already was overwhelmingly rejected by the U.S. Court of Appeals for the D.C. Circuit, the WSJ's understanding of administrative law is also suspect. The Supreme Court has long held that courts generally must defer to the judgment of federal agencies that promulgate rules in the absence of explicit Congressional intent, a rule that was laid out in a 1984 case called Chevron v. NRDC. Chevron instructs deference to regulatory agencies where a “statute is silent or ambiguous.” As the WSJ itself points out in its additional attack on the EPA's attempt to minimize the economic effects of its regulation of greenhouse gas emissions, the original “numerical threshold” codified by Congress in the CAA no longer makes sense now that the EPA must regulate these newly recognized pollutants. The EPA, as it points out in its Supreme Court brief, recognized that enforcement of the CAA at the old level would “frustrate ... congressional intent and lead to 'absurd results'” and revised the rule to “better achieve Congress's purpose in enacting” the CAA.

This is how administrative agencies work: by lending expertise and judgment to policy decisions not foreseen by the enabling legislation. The WSJ might not like it, but the EPA's tailoring of its regulatory authority over harmful greenhouse gas emissions from large sources is a result of the Supreme Court's 2007 opinion in Massachusetts v. EPA, which opened the door to such rulemaking in the first place.

But Supreme Court precedent hasn't stopped the WSJ from arguing that the EPA is guilty of “regulatory overreach.” That's an extreme position -- even conservative Justice Antonin Scalia has stated that federal agencies should be given wide latitude when promulgating and enforcing regulations. Writing for the majority in a regulatory case from 2013 called Arlington v. FCC, Scalia affirmed that the Chevron doctrine applies to federal agencies like the EPA: 

Chevron is rooted in a background presumption of congressional intent: namely, “that Congress, when it left ambiguity in a statute” administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”... Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. ... Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.

The WSJ's editorial is a tired and rejected attempt to paint the EPA as a lawless band of regulatory cowboys, but that just isn't true. The EPA is doing what the CAA requires them to do, under constitutional powers even Scalia has recognized. 

Photo via Metro Transportation Library and Archive