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EPA's climate authority stands

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By The Washington Post
Tuesday, Oct. 15, 2013, 8:24 p.m.

WASHINGTON — The Supreme Court upheld the Environmental Protection Agency's ability to regulate greenhouse gas emissions as a pollutant on Tuesday, even as it agreed to examine how the agency could demand greater pollution controls through the permitting process.

Groups, including the oil and chemical industry, had challenged several aspects of the EPA's regulatory authority, such as whether carbon dioxide constituted a pollutant under the Clean Air Act and whether the agency could limit greenhouse gas emissions from motor vehicles and power plants.

Both sides welcomed the Supreme Court's announcement, though climate activists had more reasons to celebrate.

“Today's orders by the U.S. Supreme Court make it abundantly clear, once and for all, that EPA has the legal authority and the responsibility to address climate change and the carbon pollution that causes it,” said Vickie Patton, general counsel for the Environmental Defense Fund.

However, Harry Ng, the American Petroleum Institute's vice president and general counsel, said the decision to take up half a dozen cases shows “the EPA is seeking to regulate U.S. manufacturing in a way that Congress never planned and never intended.”

“The Clean Air Act clearly only requires pre-construction permits for six specific emissions that impact national air quality — not greenhouse gases,” Ng said. “That kind of overreach can have enormous implications on U.S. competitiveness and the prices that consumers pay for fuel and manufactured goods. We're pleased that the court has agreed to review our petition — alongside several others — and we look forward to presenting our case.”

The question of how much the Supreme Court could scale back the federal government's ability to curb greenhouse gas emissions, now that it has taken up a narrow legal challenge, remains unclear.

Sean H. Donahue, the attorney representing several environmental groups that intervened in the case, said even in a worst-case scenario a ruling against his side would not have a major impact because EPA would retain the flexibility to require carbon controls from power plants emitting other criteria pollutants such as sulfur dioxide and nitrogen oxide.

“As a matter of emissions reductions, it's of quite limited import,” Donahue said.

But Stephen Brown, general counsel for the oil refiner Tesoro Corp., said it was “huge” that the justices were willing to review whether EPA has been making unreasonable demands of utilities seeking federal air permits for building facilities.

“That's exactly what the industry has been complaining about,” Brown said, adding the issue has cropped up because EPA “is trying to fit a political agenda into a statute that was not designed for it.”

One interesting wild card in the Supreme Court's upcoming decision: Justice Samuel A. Alito recused himself from the decision on whether to take up the challenge to EPA's climate authority. If he decides to recuse himself from a decision on the case, it could end in a tie, delivering a win for the agency.

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