Justices Divided Over Greenhouse Gas Regulations

, The National Law Journal


Sidley Austin's Peter Keisler
Sidley Austin's Peter Keisler

U.S. Supreme Court justices appeared to be in the market for a compromise on Monday in a high-stakes dispute over the Environmental Protection Agency's power to regulate greenhouse gases from stationary sources.

During more than 90 minutes of oral argument in Utility Air Regulatory Group v. EPA, the justices seemed divided along classic liberal-conservative lines.

The court’s more liberal members appeared ready to defer to the EPA in interpreting an unclear legislative mandate to regulate air pollutants.

Conservatives on the court seemed skeptical, suggesting that the EPA was trying to rewrite acts of Congress to expand its regulatory reach to millions of minor sources of pollution. 

Justice Anthony Kennedy and Chief Justice John Roberts Jr. may be swing votes in the case. In their questioning of Sidley Austin partner Peter Keisler, who represented private parties challenging the EPA, both Kennedy and Roberts suggested the court has some obligation not to ignore the court’s 2007 precedent Massachusetts v. EPA. That decision said the EPA did have authority to regulate greenhouse gases emitted by motor vehicles.

Justices seemed interested in possible compromises that would permit EPA regulation of emissions from stationary sources, but using a higher threshold or triggering standard, to eliminate thousands of low-level polluters. An earlier brief by Keisler on behalf of the American Chemistry Council suggested such an approach, and Solicitor General Donald Verrilli Jr. also expressed interest in a solution along those lines.

“The court is desperately searching for a rational compromise,” said Thomas Lorenzen of Dorsey & Whitney, who watched the arguments and was involved in the case at earlier stages while working in the Justice Department’s Environmental and Natural Resources Division.

Keisler ran into sharp questioning from the justices, in part because of the conflicting positions his multiple clients took on the question before the court at earlier stages. When the justices granted several petitions challenging the same regulations, the court consolidated the cases, forcing them to agree on one stance and one advocate.

Justice Elena Kagan told Keisler she had seen “four different interpretations that all of the folks on your side, and I realize there are a lot of them, have presented. And I guess I am asking you which one you’re arguing for.”

Keisler said his position was that the program at issue in the case—Prevention of Significant Deterioration or PSD—did not give the EPA authority to regulate greenhouse gases, though other Clean Air Act programs did.

What's being said

  • not available

    Re comment on CO2 as pollutant. Whether CO2 is an essential ingredient of life is irrelevant. What is relevant is whether excess emissions from non-natural sources (those we can control) are harmful. Water is also an essential ingredient of life, but too much can drown you.

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    Since when is the Court obligated to seek compromise? I thought their purpose was to interpret the Constitution and uphold it. I concur with the comment, below as well.

  • not available

    And all based on the misbegotten notion that CO2 is a "pollutant," raher than what it really is--an essential ingredient of life on earth.

  • not available

    And all this because globally averaged temperatures rose one-third of a degree Celsius from 1978-1997, and then levelled off since 1997. The greatest scientific fraud in history, propelled by 100 billion in federal research grants. A cause only a statist liberal could love.

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