The Supreme Court on Monday largely upheld one piece of the Obama administration’s increasingly ambitious response to the threat of climate change. This is the third time in a decade that the court has validated the Environmental Protection Agency’s wide power to restrict greenhouse-gas emissions — power the agency derives not from presidential whim but from the Clean Air Act. It probably will not be the last.
Those who oppose the EPA’s bureaucratic, rule-bound approach to cutting carbon dioxide cannot rely on the courts to preserve the status quo, in which the federal government did little to combat global warming. If the critics want something better, they need to abandon the nihilistic refusal to address climate change that has prevailed in Congress and propose a more economically rational strategy. More than ever, doing nothing is not an option. But there is still wide opportunity to debate the best approach.
The court mostly sustained the EPA’s efforts to subject large industrial emitters of greenhouse gases to a significant permitting program, which forces big polluters to install control technologies on their facilities. The justices determined that the agency may apply its permitting authority to any major emitter, no matter the industry, as long as that emitter is already subject to restrictions of at least one other air pollutant. This approach will not pull in every source of greenhouse gases. But it gives the EPA what it wanted: a rule tailored to the largest emitters. Writing for the majority, Justice Antonin Scalia noted that the decision allows the EPA to regulate the sources of 83 percent of emissions from fixed facilities, such as power plants and cement mixers, as opposed to the 86 percent the agency proposed.
The permitting program complements another EPA climate effort under a different part of the Clean Air Act, which restricts greenhouse emissions from particular industries, such as the power sector. This second prong of the EPA’s approach is more important, finding expression in recently announced rules that will set overall emissions caps on power plants across the country. As the EPA applies them, these rules will also be challenged in court. Monday’s decision does not offer certainty, but it’s not a good omen for those who hope to handcuff the agency.
We believe that the EPA’s rules are a decent start to addressing climate change, particularly given Congress’ irresponsible abdication. But they are neither efficient enough nor ambitious enough to be the comprehensive national climate policy the country needs. The agency’s rules are as economically rational as the law will allow. But Congress could do much better by legislating a market-based approach to carbon dioxide regulation. Instead of trying to attack the EPA, it’s time for lawmakers to do something productive on global warming.