Justice Kennedy skeptical of EPA's powers

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The Supreme Court’s swing vote on Monday voiced skepticism of a key plank in the Obama administration’s efforts to limit greenhouse gas emissions.

Justice Anthony Kennedy on Monday suggested he believed the Environmental Protection Agency overstepped its bounds in the way it is requiring greenhouse gases be regulated under permits for power plants, factories and other “stationary” sources.

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“I couldn't find a single precedent that supports [EPA's] position,” Kennedy told Solicitor General Donald Verrilli Jr. during oral arguments on the case Monday. 

Kennedy was joined in his skepticism by the court’s four conservative justices, while liberals on the court generally backed the EPA’s interpretation of its powers under the Clean Air Act.

It is notoriously dangerous to read too much into the court’s oral arguments, however; Kennedy did not indicate how he would vote on that case.

A majority vote against the EPA in the case would be unlikely to prevent the administration from regulating greenhouse gas emissions.

The Supreme Court in a 2007 decision determined that greenhouse gas emissions could be considered an air pollutant subject to the Clean Air Act, and there was little sign on Monday that this would be overturned.

But a decision against the administration could curb some of its efforts and send a powerful political signal that there are limits to what the administration can do.

President Obama has focused his climate-change agenda on the regulatory side since legislative efforts ground to a halt in Congress after 2009.

Republican lawmakers who have also filed briefs in the case said allowing the EPA to consider greenhouse gas emissions in its permitting process for a wide range of industries would slow the U.S. economy and bury businesses in red tape.

Verrilli, in his arguments, told the justices that the EPA faces an increasingly urgent problem in climate change, which Obama in recent weeks has linked to severe weather events. He said under the circumstances, the EPA had “made the most reasonable decision possible.”

“The EPA did what it did because it faces an urgent problem and every year that passes this problem gets worse,” Verrilli said.

Liberal justices on the court argued that the groups challenging the EPA ruling have offered different interpretations of what qualifies as an air pollutant.

Justices Elena Kagan and Sonia Sotomayor, both of whom Obama nominated to the court, argued that these different interpretations highlight the ambiguity of the law.

“Why isn't this a classic case of deference to the agency?” Kagan asked Peter Keisler, who is representing a group of private industry petitioners, including the Chamber of Commerce.

Kagan referred to a past ruling by the court that said it should defer to agencies when the law is ambiguous.

“This to me is the quintessential ambiguity in a statute where we give deference to the agency. So, if your side can’t come to one interpretation, why shouldn’t we defer to the agency?” said Sotomayor.

The fight goes back to a 2007 Supreme Court decision that greenhouse gasses can be considered an air pollutant that can be regulated by the EPA. Kennedy was in the majority on that decision, something that put his questions under the microscope on Monday.

In 2010, the EPA said its emissions standards for passenger cars triggered a need to regulate greenhouse gas pollutants under permits for new, stationary facilities because the gases were deemed an endangerment to “public health or welfare.”

The EPA’s rule states that “any source of air pollutants which emits or has the potential to emit a threshold of either 100 or 250 tons per year” must be regulated.

For carbon dioxide emissions, it said anything emitting more than 75,000 tons a year should be subject to permits.

The EPA said it set up the metric in its new rule in order to “focus only on the largest emitting facilities.” It said this would “shield small industrial facilities and businesses from needed greenhouse gas permits.”

Business groups and opponents, however, said it went too far.  

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