When judges set policy

June 30, 2014
Environmental policy set by judges can thrill lawyers but confound everyone else. This, of course, explains the energetic litigiousness of environmental groups unable to work their will politically.

Environmental policy set by judges can thrill lawyers but confound everyone else. This, of course, explains the energetic litigiousness of environmental groups unable to work their will politically.

US policy related to climate change comes increasingly from the judicial system. Congress wisely refuses to impose economic hardship as a precaution against postulated overheating of the planet. Taxing carbon, by one means or another, and replacing cheap energy with expensive alternatives would raise energy costs painfully. This is certain. Payoff, in the form of meaningfully avoided warming, is conjectural. Political outcomes pointedly and consistently reflect strong American distaste for sacrificial tradeoff such as this.

Messy policy

So activists have sued. And in 2007 the Supreme Court ruled carbon dioxide and other greenhouse gases might be construed pollutants subject to regulation under the Clean Air Act (CAA). This month it ruled the regulator in this undertaking has exceeded its authority but may mostly proceed anyway. While the legal reasoning behind these opinions might well be unassailable, the consequent policy is a festering mess.

Supreme Court justices are not scientists. When a majority of them ruled, in Massachusetts v. the Environmental Protection Agency, that greenhouse gases could be treated as pollutants under the CAA, they were interpreting law, not establishing scientific fact. They ruled that if the EPA determined something emitted into the air threatened health, according to the CAA the agency could regulate the substance as a pollutant. As part of the expansionist administration of President Barack Obama, the EPA made that determination and has been regulating enthusiastically ever since. Its main actions so far on greenhouse gas will slash the use of coal as an energy source for the generation of electricity.

But is CO2 really a pollutant like the so-called criteria pollutants specified in the CAA, such as ozone, sulfur dioxide, and particulates? In fact, the gas is essential to life. Plants need it to grow. Animals need it to regulate breathing. CO2 is harmful only to the extent it contributes to dangerous warming of the atmosphere—a disputable proposition, however regularly it's treated with exclusive certitude by advocates of precautionary sacrifice. But EPA has no time for inconvenient distinctions, scientific debate still mischaracterized as "settled," or any other potential constraint on its self-inflating authority.

In its ruling announced on June 23, the Supreme Court at least revealed alarm over the EPA's quest for power. In a case appealing a lower-court decision that denied challenges to EPA's extension of CAA regulation to stationary sources of greenhouse gases, the court faulted the agency's interpretation of the statute and asserted limits to its authority. It said the EPA can't require CAA permits only on the basis of a facility's emissions of greenhouse gases. And it said the agency lacks authority to raise emission-level permitting triggers above statutory thresholds. Application of the statutory triggers to facilities emitting only greenhouse gases would subject many small, nonindustrial facilities, such as schools and hospitals, to CAA permitting requirements.

While essentially telling the EPA it can't interpret law to suit its purposes or change law when its interpretation makes administration cumbersome, the court nevertheless approved the agency's main regulatory thrusts. Emission sources already needing CAA permits for conventional pollutants, it ruled, can be required to meet the act's requirements for "best achievable control technology" for greenhouse gases, too.

Tread carefully

The Supreme Court thus has told EPA to tread carefully but allowed it to keep treading. It has begun to define limits to the authority of an agency that regularly tests jurisdictional bounds. That part of the ruling is welcome, indeed. It might constrain other regulatory adventures. The administration's campaign against coal survives, nevertheless. And it won't stop with solid hydrocarbon.

The campaign seeks to control a pollutant that doesn't really pollute, directed by an agency that exceeds its authority except when it doesn't. This is legal ingenuity from which only Congress can rescue the republic, if it only would.