The environment, greenhouse gases, and the SCOTUS: On Utility Air v. EPA

5-cent explanation: To what extent can the Environmental Protection Agency regulate greenhouse gas emissions from stationary, i.e. industrial, sources?

10-cent explanation: In 2007, SCOTUS ruled in Massachusetts v. EPA that the EPA could regulate greenhouse gas emissions (GHGs), per the Clean Air Act (1970), so long as they were deemed a danger to public health. The agency accordingly concluded that GHGs from motor vehicles were dangerous and began to regulate them. The agency also concluded if it was going to reduce GHGs from mobile sources, stationary sources should be regulated as well.

The problem is, when the Clean Air Act was signed into law, GHGs on the whole were not the intended target of the legislation. Widely accepted air pollutants at the time, like Carbon Monoxide, prompted the establishment of thresholds for stationary sources at 100 to 250 tons per year. GHGs, however, are an entirely different beast because more than six million buildings around the country- everything from schools to hospitals to large homes- emit more than 100 tons of GHGs annually. This would have created an administrative nightmare where regulating stationary sources at the statutory levels would completely overload the agency with permitting procedures and consequently defeat the purpose of regulating GHGs in the first place. Thus, EPA “tailored” the law and set higher stationary thresholds for GHGs at 100,000 tons per year, thereby allowing the agency to effectively carry out its mission of decreasing GHG emissions.

A couple of issues arose in this case. First, there’s the question of whether the agency’s ability to regulate emissions from mobile sources triggers a corresponding need to regulate stationary sources for the same pollutant. Environmentalists argue that curbing GHGs is a primary goal therefore both sources should be regulated. The second major issue stems from EPA’s decision to “tailor” the Clean Air Act to meet its current needs. On the one hand, Congress explicitly laid out thresholds for monitoring stationary sources that EPA did not adhere to. On the other, EPA is tasked with regulating GHGs – as they pose a significant danger to public health – and it requires only a slight modification of the numbers.

Although SCOTUS had a handful of cases surrounding the EPA and GHGs to choose from heading into the October 2013 term, the Court chose to narrowly weigh in on this single issue. In doing so, SCOTUS implicitly accepted that GHGs do in fact pose a threat to human health, and furthermore, the agency has the power to curb emissions from the exhausts of mobile sources such as cars and trucks.

The decision: Justice Scalia authored the (9-0) majority* opinion. Here are three main points:

  1. EPA cannot regulate GHGs from stationary sources simply because it has the power to do so for mobile sources.
  2. EPA cannot set its own threshold limits for regulating stationary sources when Congress has already explicitly set those limits in statute, even if it would be an administrative nightmare for the agency.
  3. EPA can require stationary sources to use best available control technologies to control GHGs so long as the source already emits other types of air pollution and therefore was already under agency regulation.

In a nutshell, the first points were losses for EPA and hammered home that the agency had abused its authority. The third point, however, is what pragmatically matters most, and ultimately will allow EPA to regulate GHGs for almost all of the stationary sources that it was already regulating (83% of all stationary sources emitting GHGs as opposed to the desired 86%).

Despite the overall win for EPA, Scalia selected some scathing language in his criticism of EPA’s violation of the separation of powers. He wrote, “An agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate… We are not willing to stand on the dock and wave goodbye as EPA embarks on a multiyear voyage of discovery.” Scalia might have sided with EPA, but his opinion indicated it was most likely begrudgingly. It’s almost like the Court wanted to severely rebuke EPA for its overreach, but ultimately decided that the cost of global warming wasn’t worth it and therefore threw the agency a lifeline.

Related News:   You might have heard about the conflicting rulings from federal appeals courts about tax subsidies in Obamacare. As if it weren’t already hard enough to explain the judicial system to friends and students… we digress. Out of this EPA case might hide a clue, or “poison pill” as legal scholar Cass Sunstein coined it, for the future of Obamacare’s tax subsidies should such a case(s) go to SCOTUS. Sunstein quotes from the Scalia’s opinion, “an agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory term.” This could spell trouble for proponents of Obamacare given the specific writing of the ACA. Nevertheless, Sunstein has also gone on the record saying he thinks that the Fourth Circuit (the appeals court that unanimously upheld the subsidies) was right and a majority of the Supreme Court would stand by that decision.

*The majority opinion is a little tough to navigate given the jumbled ruling. Scalia authored three main points. On the first two, the Court split down ideological lines 5-4, and on the last point, Alito and Thomas were the sole dissenters in a 7-2 ruling.

We enjoyed this article from SCOTUSblog on the case entitled “Can the EPA really regulate a statute?  Really?

This piece was written by contributor Elliot Louthen.  Follow him on Twitter @ElliotLouthen.

Reflecting on the Supreme Court’s previous term (OT13) – Where were you?!?

SB was fortunate to be back in the SCOTUS the last two weeks of the Court’s October 2013 term. If you’ve been following us, you know last summer was our first experience with SCOTUS reporting access and gumption. Cut to this summer.  SB was better prepared for mayhem, but access inside was surprisingly easier and attention paid to the decisions seemed less focused and more manic. That struck us as weird and it’s the point of this post – You should’ve been paying closer attention to the cases this year.

Access was likely easier this year because OT13 didn’t have the hype and crowd that OT12 did. The crowd just wasn’t there outside or inside the Court, and public interest only piqued after the final decision (Hobby Lobby) was announced. Over the five days SB was inside, the two pews reserved for those with hard press passes never had more than 8-9 reporters in them and the press gallery was thin.

A few thoughts on why the lethargy this June. Last year may have had sexier cases, literally. Same-sex marriage cases put butts in seats. So did affirmative action and voting rights cases. Two famous bottoms were in Court seats on a Monday last summer awaiting decisions on any of the three decisions – Justices O’Connor and Stevens. Reporters were packed into the gallery cheap seats assigned their spots by security, and on the final day we were even relegated to sitting in the “intern” section (with my people).

But that didn’t happen this year on the last day the Court was in session. Only two cases remained, one that was arguably the big case of the term – Hobby Lobby – and yet seats were readily available in the Court, the press office buzz was sedate, and the Court steps were still visible through the small group of pro-Life protestors outside. The press seemed to need the coveted access inside less. Many writers chose to stay in their cubicles inside the press office, were content listening to the audio piped into the basement of the Court, or were likely hanging out in the office following SCOTUSblog’s live feed. Another sign of a waning interest this term – There were less bespoke interns with wardrobes interrupted by gym shoes waiting in the press office to hustle out to their network.

So what happened this year?! We don’t know. Although they may have lacked the appeal of same-sex marriage, there were several other cases this term that answered questions more likely to affect the general public than same-sex marriage or birth control for Hobby Lobby employees. See if you can answer them:

  • Can you protest less than 35 feet away from an abortion clinics? (McCullen v. Coakley)
  • Can you buy a $12 antennae to watch and record another state’s local television channels? (ABC v. Aereo)
  • Can the president make an appointment when the Senate is in a session that feels and looks more like a recess? (NLRB v. Noel Canning)
  • Can opponents of the President be relocated farther away from a protest while supporters get to remain in their (closer) spot? (Wood v. Moss)
  • Can police search all the contents of your cell phone after a traffic violation? (Riley v. California)

If you want the answers to these questions, click on the case in parenthesis to get background details and the decision.

Perhaps those topics don’t have the high interest of same-sex marriage, which may be why OT13 just wasn’t as popular as last term. But with gay marriage cases running through the 6th, 9th, and 10th Circuits the audience may get their SCOTUS wish next term. Regardless, we all saw great hues and cries screamed across the social networks days after Hobby Lobby criticizing the Court for what they did or didn’t do with little bandwidth given to the other 69 cases decided this term. Although four cases do not paint an accurate portrait of what happened during one Supreme Court term, reducing this past term to one case would be worse! It’s unfair to the justices and, frankly, lazy of the citizenry.




It’s not a dickey, doily, or dog collar – It’s a jabot

Oh…My…God.  Amazing!

This.  Just this...

This. Just this…

We were on vacation when this story broke and now we know to scrutinize every beautiful jabot – the bejeweled or lacy collar-like necklaces Ruth Bader Ginsburg wears on top of her robe – RBG wears on decision day like it’s our job.

Get your own at Etsy here.  No, they’re not as cool RBG’s from South Africa or the Metropolitan Opera house, but they’re a bit more in our budgets.


The “sleeper case” of the 2013 Term: Harris v. Quinn and the future of unions

Hobby Lobby is all the rage. We get it. Religious freedom, women’s rights, and the all-too-frequently heard “Corporations are people too” will be conversation fodder for the rest of the summer. If you really want to sound smart though, you’re going to want to tell your friends that Harris v. Quinn was the sleeper case of the 2013 term. Public-sector unions are *almost* dead. Here’s what you need to know:

5-cent explanation: The question in this case was – Can public-sector, home-health care workers in Illinois who serve Medicaid recipients be forced to pay union fees even if they choose to not be a part of the union? Continue reading

SB’s holiday party prep part II: 5 reasons Hobby Lobby was decided Right/Wrong

We all have parties, BBQ’s, and events to go to this 4th of July weekend.  We’re guessing the recent Supreme Court Hobby Lobby decision may come up, so we created the following “talking points” to make you sound informed and engaged in current civic affairs.  Because, after all, nothing says “America” like stuffing our faces with charred hot dogs and cold beer while arguing politics.  We’ve provided two basic background concepts to know about before you jump into the waters of controversy and, based on your personal feelings about the decision, five support statements you could use to win the argument, sound smart, or better understand the case.

Screen shot 2014-07-02 at 4.49.22 PM

Sums up ‘Merica, nicely.

Two things to know before the debate: Continue reading

SB’s interview with SCOTUSblog: On teaching & mentoring, press passes, and the future

Tom Goldstein is going to a concert, and isn’t afraid to brag about it.

He held up two printed tickets with bar codes. “Don’t be jealous that I’m going to Katy Perry tonight.”

“Too late,” I responded.

Founder, Tom Goldstein, second from the right and SCOTUSblog writer Lyle Denniston, center, cover the Court.  Like bosses.

Founder, Tom Goldstein, second from the right, and SCOTUSblog writer Lyle Denniston, center, cover the Court. Like bosses.

SCOTUSblog is my first and often last stop for Supreme Court news.  I read it for personal interest and I use the site in my practice as a teacher to help young adults understand the judiciary.  SCOTUSblog inspired this website.  I wanted to talk to him while I was in D.C. about the role SCOTUSblog plays in teaching readers about the Supreme Court in the final weeks of the Court’s term.  This is a hectic time for him but he graciously invited me to his law office on Wisconsin Avenue to talk on a day sandwiched between two big decision days. Continue reading

On ABC v. Aereo

5-cent explanation:  Does Brooklyn, NY-based Aereo violate copyright laws when they provide equipment, at a cost of roughly $8 a month, to get local stations routed to consumers computers, tablets, or phones, to record and play programming on a cloud-based server?

10-cent explanation:  Aereo might be on to something – A la carte programming that saves viewers hundreds of dollars by abandoning packages and contracts with the majors cable companies.  Since this case first ignited attention in January, studies revealing people tend to only watch 7-8 channels out of the hundreds they’re offered through their cable companies have raised eyebrows.  Wise to this reality, young people in particular have cut ties with their cable providers opting instead for Apple TVs, Rokus, Slingboxes and now Aereo.   Continue reading