By Lawrence Hurley
WASHINGTON Feb 24 The U.S. Supreme Court
appeared closely divided on Monday as it weighed whether the
administration of President Barack Obama exceeded its authority
when crafting the nation's first greenhouse gas emissions
Justice Anthony Kennedy could hold the swing vote on the
nine-member high court, with conservative justices skeptical of
the U.S. Environmental Protection Agency's (EPA) approach and
liberal justices generally supportive.
It is possible the court could opt for a compromise in which
the EPA loses the case but retains most of its authority to
regulate greenhouse gases under the specific program at issue in
the case. Such a move could potentially win the support of some
Absent congressional action, Obama has been using his
regulatory authority to address climate change. The Clean Air
Act has been the EPA's main tool for addressing emissions since
the U.S. Senate rejected a cap-and-trade bill in 2010.
During a 90-minute oral argument, Kennedy, an appointee of
Republican President Ronald Reagan who is often the court's
deciding vote, offered some criticism of the government's
position but did not indicate which way he would vote. A ruling
is expected by the end of June.
In his most outspoken question, Kennedy clashed with the
Obama administration's lawyer, Solicitor General Donald
Verrilli, over some of the government's legal arguments.
"I couldn't find a single precedent that strongly supports
your position," Kennedy said.
The justices are weighing just one aspect of the
administration's first wave of climate change regulations,
focusing on whether the agency has authority to regulate
greenhouse gases under a program for stationary sources of
pollution, such as power plants and oil refineries.
The ruling is unlikely to have a broad impact on the
administration's climate strategy, including plans to introduce
greenhouse gas standards for new power plants under a separate
provision of the Clean Air Act. The standards were announced in
September but have yet to be formally issued.
COURT HAS OPTIONS
The court has various options if it finds fault with the
government's conclusion that greenhouse gases should be
regulated under the "prevention of serious deterioration," or
PSD, program, which requires any new or modified major polluting
facility to obtain a permit before any new construction is done
if it emits "any air pollutant." The program requires facilities
to install the best available technology to control emissions of
The compromise option discussed by the justices would
require facilities already subject to the permit program for
other air pollutants to be regulated for greenhouse gases but
would exempt other facilities.
Several justices, on both sides of the ideological divide,
questioned whether a loss for the EPA along those lines would be
much of a setback.
Chief Justice John Roberts, one of the conservatives, cited
a court filing by the American Chemistry Council, one of the
challengers, which said that if the court rules narrowly, 83
percent of greenhouse gas emissions that could potentially be
regulated under EPA's interpretation of the law would still be
covered, compared with the 86 percent of emissions that the EPA
says it wants to regulate.
Likewise, when industry lawyer Peter Keisler noted that
greenhouse gas emissions would still be covered under the
standard-setting part of the Clean Air Act, Justice Stephen
Breyer, a moderate on the liberal wing, seemed momentarily
"Well, then I don't know what this case is about," he said.
Justice Elena Kagan, who was appointed to the court by Obama
in 2010, mounted a more stout defense of the government. She
questioned whether the EPA's interpretation of the law was any
more unreasonable than those put forward by the challengers.
She cited a key Supreme Court precedent that says courts
should give government agencies deference when the law is
"Why isn't this a classic case for deference to the agency?"
Questions posed by the justices suggested they have no
intention to revisit a landmark 2007 case, Massachusetts v. EPA,
when it held on a 5-4 vote that carbon was a pollutant that
could potentially be regulated under the air pollution law.