Experts: Ruling helps target top polluters

The Supreme Court ruling Monday overturning the Environmental Protection Agency’s (EPA) authority to regulate a small subset of polluters actually helps the agency, legal experts said, allowing it to focus on the biggest carbon emitters.

The Monday ruling held that EPA cannot require air pollution permits from factories, power plants or other sources just because they emit a large amount of carbon. But it upheld the EPA’s ability to require facilities that emit other harmful substances to also limit their carbon pollution.

Experts said that was the EPA’s goal all along and that the agency had struggled to find a way to regulate the largest polluters without also being forced to subject millions of other buildings in the U.S. to their permit process.

The EPA and Solicitor General Donald Verrilli told the court that when the agency decided to require permitting for carbon emissions, it found that a literal reading of the Clean Air Act would have required it set a threshold of 100 tons of carbon dioxide a year. That would have put 6.1 million buildings under its purview, including large office buildings, and cost more than $22 billion to regulate.

So the EPA wrote its “tailoring rule,” in which it decided to set the threshold at 100,000 tons a year. The court struck down the tailoring rule, but also said the EPA did not have to regulate those facilities whose emissions don’t exceed other thresholds.

“EPA’s tailoring rule specifically was written to avoid regulating the small sources, because of the administrative burden and the inefficiency of regulating all of those small sources,” said Tim Profeta, director of Duke University’s Nicholas Institute for Environmental Policy Solutions.

The Monday ruling gets the EPA close to its original regulatory goal, without having to enforce an overly broad reading of the Clean Air Act.

Since the vast majority of large carbon polluters also emit other harmful substances like ozone and soot, the EPA estimates that its power extends over 83 percent of carbon emissions, compared with the 86 percent it would have been allowed if the court had completely upheld its rule.

“The only thing that EPA could have done if it had won across the board that it won’t be able to do now is regulate another 3 percent of emissions,” said Richard Revesz, a New York University School of Law professor who filed a brief support EPA in the case. “That’s all that’s at stake.”

The court’s ruling, written by Justice Antonin Scalia, faulted the EPA’s interpretation of the law. But it endorsed another interpretation, in which the EPA defines large sources of pollution as those that only exceed thresholds of other substances.

“So they end up almost in the same place,” Profeta said.

The EPA’s critics, though, praised the ruling, saying it also closed the door to the agency expanding their purview in the future.

Richard Faulk, an attorney who filed a brief on behalf of local and state chambers of commerce in the case, said the ruling is very important, because the EPA likely would have reduced the carbon dioxide threshold in the future to catch more polluters.

“I think it’s one of the most significant rebukes to an expansion of power that I’ve seen in years,” Faulk said.

“The levels that they were prepared to go down to ultimately — not immediately, but ultimately — was just astounding,” he added. “Even large homes, apartment complexes, those sorts of things, they didn’t rule out the regulation of those sorts of things.”

The EPA spokeswoman Liz Purchia said the 3 percent subset would have included landfills, pulp and paper facilities, electronics manufacturers, or other facilities that burn fuel on-site for their operations.

Calpine Corp. filed a brief in the case saying two of its geothermal electricity generating plants in California would have required permits due to their carbon dioxide emissions alone.

“It’s a very unusual situation,” Revesz said.