The Patriot Post® · Supreme Court Splits EPA Baby

Depending on your political perspective, Monday’s Supreme Court decision in Utility Air Regulatory Group v. EPA was either a win, loss or draw for big government regulation. Unfortunately, the Opinion of the Court, although reported as a 5-4 opinion, is really a multiplicity of opinions that didn’t deal with global warming-based regulations as clearly as we would have liked.

In simple terms, the issue was whether the EPA could, through regulations, go beyond the letter of the Clean Air Act. It appears that the Supremes, imitating King Solomon, decided to split the baby. Among other things, the Court held 1) the Clean Air Act neither compels nor permits EPA to adopt an interpretation of the Act; 2) agencies empowered to resolve statutory ambiguities must operate “within the bounds of reasonable interpretation”; 3) EPA lacked authority to “tailor” the Act’s unambiguous numerical thresholds; 4) EPA reasonably interpreted the Act to require sources that would need permits based on their emission of conventional pollutants to comply with the “best available control technology” (BACT) for greenhouse gases; and 5) EPA’s decision to require BACT for greenhouse gases emitted by sources otherwise subject to “Prevention of Significant Deterioration” (PSD) review is, as a general matter, a permissible interpretation of the statute.

In an editorial, The Wall Street Journal declared the decision “A Constitutional Tutorial for Obama,” saying:

> The Obama Administration’s abuse of executive power is emerging as this Supreme Court term’s defining theme, and on Monday the Justices applied some basic constitutional law to the White House’s anticarbon agenda.

> In Utility Air Regulatory Group v. EPA, the Justices feed several major climate regulations into the wood chipper. “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy,” the majority observes, “we typically greet its announcement with a measure of skepticism.”

> The ruling amounts to an overdue correction to Massachusetts v. EPA, the 5-4 ruling in 2007 that held greenhouse gases can be “pollutants” under clean air laws that were written decades before the carbon panic. That decision wrongly rewrote the Clean Air Act, but it was also always narrower than liberals made it out to be and never the license for policy rewrites that became the EPA’s interpretation.

On the other hand, The Daily Signal declared “Supreme Court Fails to Rein in EPA,” explaining the Court ruled in favor of broad authority for the EPA: “In an important opinion, the court ensured the EPA will continue to use its authority under the Clean Air Act to regulate ‘global warming,’ and industry will have to sue in federal court to stop the EPA’s most egregious abuses.”

Both points of view are part of a larger discussion on the constitutionality of acts by the Obama administration and Barack Obama in particular, an issue raised this week in a column by Thomas Sowell in which he charges, “President Obama has demonstrated, time and again, that he has no respect for the Constitution’s limitations on his power.” Sowell asks, “Why do we have a Constitution of the United States if a president can ignore it without any consequences? The Constitution cannot protect our rights if we do not protect the Constitution.”

Sowell states the power to end unconstitutional behavior is in the hands of ordinary citizens if they choose to exercise it through the ballot. If this was done, we would not be divining the meaning of Utility Air Regulatory Group because the underlying EPA action would not have taken place if the agency adhered to the Constitution.