Today's Supreme Court Ruling: Three Key Questions

by Daniel Farber

June 23, 2014

Direct implications are limited, but we'll be reading the tea leaves for future implications.

Scholars, lawyers, and judges will be spending a lot of time dissecting today’s ruling.   Overall, it’s a bit like yesterday’s World Cup game — EPA didn’t win outright but it didn’t lose either.

Here are three key questions with some initial thoughts:

What is the direct legal impact of the ruling?  This was really a split decision.  Some sources will escape being covered by EPA’s greenhouse gas rule, but most sources (over 80%, according to the Court) remain covered.  So EPA can claim that it gained more than it lost from the decision.  It is also important to note that seven Justices have now confirmed the ruling in Massachusetts v. EPA that the Clean Air Act covers greenhouse gases.  The Court also failed to review, and thereby upheld, the greenhouse gas rule for vehicles.

What is the political effect?  Everybody on both sides will be spinning the decision.  My guess is that the spins will cancel, and there won’t be any net political impact.

How does the decision affect EPA’s current proposals?  This is probably the most important question and the hardest to answer.  Technically, there’s no effect: the current proposals involve an entirely different section of the statute, as the Court makes clear in a footnote.  But there’s some language in the opinion that seems unhelpful:

“We acknowledge the potential for greenhouse-gas BACT to lead to an unreasonable and unanticipated degree of regulation, and our decision should not be taken as an endorsement of all aspects of EPA’s current approach, nor as a free rein for any future regulatory application of BACT in this distinct context. Our narrow holding is that nothing in the statute categorically prohibits EPA from interpreting the BACT provision to apply to greenhouse gases emitted by [certain] sources."

That language doesn’t directly apply — different section of the statute, different language and history.  But it does seems to indicate a willingness by the Court to second-guess the reasonableness of EPA’s regulations to ensure that they don’t expand regulatory authority too much.  This language is hard to square with the general rule that it’s up to the agency, not the Court, to make policy decisions about the statute.  The current make-up of the Court seems to be four Justice who will support EPA as far as the language of the statute will go; two who will resist all greenhouse gas regulation; and three who are willing to give EPA some slack but who are worried about letting EPA go too far.  We’ll see whether EPA sees this as a signal to trim back its proposal.

This blog is cross-posted on Legal Planet.


Be the first to comment on this entry.
We ask for your email address so that we may follow up with you, ask you to clarify your comment in some way, or perhaps alert you to someone else's response. Only the name you supply and your comment will be displayed on the site to the public. Our blog is a forum for the exchange of ideas, and we hope to foster intelligent, interesting and respectful discussion. We do not apply an ideological screen, however, we reserve the right to remove blog posts we deem inappropriate for any reason, but particularly for language that we deem to be in the nature of a personal attack or otherwise offensive. If we remove a comment you've posted, and you want to know why, ask us ( and we will tell you. If you see a post you regard as offensive, please let us know.

Also from Daniel Farber

Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Law, Energy and the Environment at the University of California, Berkeley.

Misunderstanding the Law of Causation

Farber | Jan 13, 2020 | Regulatory Policy

Pride Goeth Before a Fall

Farber | Jan 10, 2020 | Regulatory Policy

A Continent on Fire Ignores Climate Change

Farber | Jan 06, 2020 | Climate Change

The Decade in Review

Farber | Dec 23, 2019 | Climate Change

2019 in Renewable Energy

Farber | Dec 09, 2019 | Energy

The Center for Progressive Reform

2021 L St NW, #101-330
Washington, DC. 20036

© Center for Progressive Reform, 2015