Duke Energy Loses Pollution Case
By MARK H. ANDERSON
April 2, 2007 11:29 a.m.

WASHINGTON -- The U.S. Supreme Court Monday ruled for environmentalists in a pair of decisions, including a major 5-4 opinion that said several states and environmental groups can sue the Environmental Protection Agency over its refusal to regulate auto emissions.

The sharply-divided opinion against the EPA ordered the agency to justify its decision to leave auto emissions unregulated under the federal Clean Air Act. "In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change," Justice John Paul Stevens wrote in the majority opinion. "We hold only that EPA must ground its reasons for action or inaction in the statute."

The auto emissions ruling split along liberal and conservative lines at the court, with moderate Justice Anthony Kennedy casting the deciding swing vote in favor of EPA regulation.

In a separate opinion, the justices ruled unanimously to vacate a lower court ruling favorable to Duke Energy Corp. in a pollution permit dispute triggered by the company's modernization of several power plants. The ruling orders the 4th U.S. Circuit Court of Appeals in Richmond (Va.) to reconsider the case in a manner opposed by the power company. "What these provisions are getting at is a measure of actual operations averaged over time," Justice David Souter said.

The ruling suggests power plant emissions could be measured by the EPA on an annual rate rather than the hourly rate favored by Duke Energy. The company favors the hourly rate because it can run its modernized plants -- which produce fewer emissions hourly than before -- for longer periods than might be allowed if an annual limit is imposed.

The auto emissions case is the Supreme Court's first broad review of U.S. policy on global warming, a point the majority sought to make at the beginning of the opinion. "A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere," Justice Stevens wrote.

The lawsuit against the EPA was brought by 12 states and numerous environmental groups, which began pushing the agency in 1999 to begin regulating car and truck emissions under the Clean Air Act. The Bush administration, however, determined the EPA didn't have the necessary authority and, also, said that even if it did such regulation wasn't proper.

The Supreme Court majority rejected the EPA's reasoning, however, and said the agency has clear authority to regulate greenhouse gases. The majority also ruled the states can sue over the EPA's regulatory decisions on auto emissions.

"We therefore hold that petitioners have standing to challenge the EPA's denial of their rulemaking petition," Justice Stevens said, adding the high court has "little trouble concluding" that the EPA has the necessary authority to regulate emissions. "Because greenhouse gases fit well within the Clean Air Act's capacious definition of "air pollutant," we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles," the majority said.

Chief Justice John Roberts Jr. and Justice Antonin Scalia authored dissents that separately attacked the reasoning under which the majority allowed the emissions lawsuit and the decision that EPA can regulate automobile emissions. "This court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency," Justice Scalia wrote, dissenting over the regulatory aspect of the ruling.

Justices Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined the majority. Justices Clarence Thomas and Samuel Alito joined the two dissenting opinions.

The cases are Massachusetts v. EPA, and Environmental Defense v. Duke Energy Corp.

Separately, the Air Line Pilots Association lost an appeal to the Supreme Court Monday challenging the Pension Benefit Guarantee Corp.'s termination of United Airlines pension plans as part of the airline's bankruptcy reorganization. United Airlines is a unit of UAL Corp..

The pilot union challenged the PBGC's actions regarding the pilot's pension, one of four plans UAL ended during its bankruptcy, which began in 2002. A federal bankruptcy court backed the PBGC in October 2005. The 7th U.S. Circuit Court of Appeals in Chicago affirmed the bankruptcy court's action last year. The case is Air Line Pilots Association Intl. v. Pension Benefit Guaranty Corp. and United Airlines.

Write to Mark H. Anderson at mark.anderson@dowjones.com

 

This ruling, at closer glance, does not seem to be a victory for states and localities. It only says that they can sue the EPA for "non-regulation" of auto emissions. It doesn't say WHAT those regulations HAVE to be...or could end up being. In fact, not only is it not a victory for those seeking to sue the EPA, but IMO it is an actual LOSS. EPA can turn around and say, "Fine, we'll set regulations...at any level we want." We might end up seeing regulated levels at half of what they are now...or even one-tenth.

Gotta think twice when you take things to the Supreme Court. Apparantly the plaintiffs, in this case, didn't. The Bush Administration EPA came out on top.

 

http://gristmill.grist.org/story/2007/4/2/91112/94158

This is a huge, huge deal. The proximate effect is that California's pioneering efforts against climate change are safe from federal interference.

 

No. You got it backwards. The EPA can set any emissions levels they want. The ruling does not say that the EPA has to enforce state-set (or even state-desired) levels....only Federal, but did NOT actually say what the Federal standards should be...that is left up to the EPA itself to determine.
While not a complete victory for the Bush administration, this is easily a major victory for them....mostly by default. The Court, while ordering that the EPA must set regulations, did not specify how or what those regulations had to be. You have to look at what this ruling DIDN'T say as much as what it DID.

Now, having said that, you are at least partially correct about California. CARB, traditionally, has set even more restrictive pollution levels than the Federal Government (one reason why some 49-state vehicles are not sold in CA), and the EPA generally has not interfered with CARB's decisions.

 

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That's right...they CAN set it.

About the only thing this will do is that a lot of interest groups will be trying to get the EPA to set those standards, which they may or may not do.