It was a loss disguised as a win, or maybe a win disguised as a loss.
The Supreme Court this week upheld the Environmental Protection Agency’s authority to regulate carbon dioxide and other emissions connected to climate change — so long as it’s regulating those emissions from sources already subject to regulation for other emissions. But the court struck down a move to make regulations specifically for greenhouse gas emitters.
In practice, as Justice Antonin Scalia took pains to point out in his majority opinion, the difference may not matter much. The EPA sought to regulate the sources of 86 percent of the gases; the ruling knocks it down to 83 percent.
The problem is that the EPA is left in a statutory straitjacket that effectively prevents it from issuing rules that make economic sense. The Clean Air Act gives the EPA authority to regulate stationary plants that emit 250 tons of pollutants. In terms of carbon dioxide, that’s nothing. The EPA set a threshold of 100,000 tons. The court, logically enough, said no, your authority says 250 tons.
And so the EPA is left with “only” the authority to regulate those they are already regulating.
There is no real question at this point that the EPA’s mandate extends to greenhouse gases; this is the third time in a decade that the court has so ruled. Presumably the EPA’s recently issued rules, aimed at power plants, will also be upheld. But it’s quite likely that a regulatory approach approved more than 40 years ago for different pollutants is not ideal for this specific problem.
We have no real quarrel with the executive branch of the government, represented by the EPA, which is at least grappling with the issue of climate change. Nor can we complain about the judicial branch, which must measure those efforts against a perhaps outdated authority. The problem is the legislative branch, Congress, a significant portion of which is determined to pretend that climate change will just go away if sufficiently neglected.
Neglect is something this Congress can achieve.