High court climate case looks at EPA's power

Published on NewsOK Modified: February 23, 2014 at 12:14 pm •  Published: February 23, 2014
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The utility industry, the U.S. Chamber of Commerce and 13 states led by Texas are asking the court to rule that the EPA overstepped its authority by trying to regulate greenhouse gas emissions through the permitting program.

The EPA's actions "represent one of the boldest seizures of legislative authority by an executive agency in history," Peter Keisler, representing the American Chemistry Council among two dozen manufacturing and industry groups that want the court to throw out the rule, said in court papers.

When the Supreme Court considered the appeals in October, the justices declined requests to consider overruling the court's 2007 decision, review the EPA's conclusion about the health effects of greenhouse gas emissions or question limits on vehicle emissions.

Instead, the court focused on the permitting program, which EPA has said it would apply for the time being only to the largest emitters of greenhouse gases.

The relatively narrow question framed by the court has led environmental advocates to minimize the case's significance.

"Twice, the Supreme Court has affirmed the EPA's authority to regulate climate pollution," said Vickie Patton, general counsel for the Environmental Defense Fund. Patton was referring to the 2007 decision and the court's 2011 decision that said only EPA, not states and conservation groups, could seek cuts in power plant emissions.

In addition to environmental groups, New York, California, Illinois and a dozen other states are supporting the administration, along with the American Thoracic Society, which filed a brief detailing the health costs of climate change.

Also in support of the regulation is Calpine Corp., which operates natural gas and geothermal power plants around the nation. Calpine said it has gone through the permitting program six times and found it "neither overly burdensome nor unworkable."

Looking at the same program, the Chamber of Commerce said it "may be the costliest, most intrusive regulatory program the nation has yet seen."

Like most environmental disputes, the current case is certainly complicated, if not bewildering.

Confusion figured in one of the court's most significant decisions, written by Justice John Paul Stevens in 1984, giving EPA and other federal agencies wide latitude to come up with rules that put meat on the bones of congressional enactments.

"When I am so confused, I go with the agency," Stevens told his colleagues, according to notes taken by Justice Harry Blackmun and contained in the papers that were made public a few years after Blackmun's death.

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Follow Mark Sherman on Twitter: https://twitter.com/shermancourt