CO2 is now legally an air pollutant

When the Supreme Court restricted the ability of the Environmental Protection Agency to fight climate change this year, the reason it gave was that Congress had never granted the agency the broad authority to shift America away from burning fossil fuels.

Now it has.

Throughout the landmark climate law, passed this month, is language written specifically to address the Supreme Court’s justification for reining in the E.P.A., a ruling that was one of the court’s most consequential of the term. The new law amends the Clean Air Act, the country’s bedrock air-quality legislation, to define the carbon dioxide produced by the burning of fossil fuels as an “air pollutant.”

https://www.nytimes.com/2022/08/22/climate/epa-supreme-court…

Jaak

Congress trumps Supreme Court

5 Likes

Congress trumps Supreme Court

I look at it a little differently.

Congress has their heads up their own kazoo’s so far they cannot write an accurate law.
Supreme Court smacks 'em up the side of the head and says write the damn law to mean what you intended.

Supreme Court trumps Congress. Congress plugs the gap.

'38Packard

1 Like

When the Supreme Court restricted the ability of the Environmental Protection Agency to fight climate change this year, the reason it gave was that Congress had never granted the agency the broad authority to shift America away from burning fossil fuels.

It did not.

The opinion did not question EPA’s ability to regulate carbon dioxide as a pollutant. It disputed whether the Clean Air Act gave EPA the power to reduce emissions of that pollutant by altering the composition of the nation’s power plants, rather than requiring individual power plants to adopt the best achievable control technology to get emissions for that plant as low as possible.

The amendment to the definition of air pollutant will not affect that analysis.

Albaby

6 Likes

Al,

It is not an amendment. The act goes over regulating the use of fossil fuels. Defining pollution is part of that process in the act.

2 Likes

It is not an amendment. The act goes over regulating the use of fossil fuels. Defining pollution is part of that process in the act.

I was replying to Jaagu’s post. He noted that among the many things that the IRA does, it amends the definition of “air pollutant” in the existing Clean Air Act. That is an amendment. He suggested that this would ‘trump’ the SCOTUS ruling in WV v. EPA. I was pointing out that it doesn’t have any bearing on that decision.

Albaby

1 Like

The amendment to the definition of air pollutant will not affect that analysis.

Albaby

===================================================

It is now in the Clean Air Act that CO2 can be considered as a pollutant. The EPA can show that most power plants burning fossil fuels are not using the best available technology. There is no way any state, utility or fossil fuel company can now take EPA to court for regulating CO2 emissions from power plants, transportation, industry or any other entity that burns fossil fuels that generate CO2 when they do not use the best available technology.

Jaak

It is now in the Clean Air Act that CO2 can be considered as a pollutant. The EPA can show that most power plants burning fossil fuels are not using the best available technology. There is no way any state, utility or fossil fuel company can now take EPA to court for regulating CO2 emissions from power plants, transportation, industry or any other entity that burns fossil fuels that generate CO2 when they do not use the best available technology.

Yes, they can.

The decision in WV v. EPA was not grounded on a claim that CO2 wasn’t a pollutant. It was based on the argument that while EPA could demand that any particular power plant had to adopt whatever technology was commercially available to reduce its emissions, they couldn’t demand that some power plants shut down or that certain types of fuels no longer be used. They held that those decisions weren’t within EPA’s authority.

IOW, SCOTUS ruled that if a coal plant is using all of the latest tech to reduce emissions, EPA can’t say that’s not good enough. They only have the power to make the coal plant be the cleanest coal plant it can (commercially) be - not to shut it down.

Amending the statute to explicitly declare that CO2 is a pollutant - something which wasn’t at issue in the case - doesn’t change that legal analysis.

6 Likes

It is now in the Clean Air Act that CO2 can be considered as a pollutant. The EPA can show that most power plants burning fossil fuels are not using the best available technology. There is no way any state, utility or fossil fuel company can now take EPA to court for regulating CO2 emissions from power plants, transportation, industry or any other entity that burns fossil fuels that generate CO2 when they do not use the best available technology.

Yes, they can.

==========================================

But they will waste their money and lose.

Jaak

WV issue is now history. We have a new and energized EPA.

But they will waste their money and lose.

No, they won’t.

The WV issue isn’t history. The WV case didn’t involve the definition of air pollutants to include CO2. At all. So amending the CAA to make it explicit that CO2 is an air pollutant doesn’t do anything to affect the reasoning of WV. So states and industry will continue to be able to successfully push back against EPA if they try to reimplement similar provisions.

Albaby

3 Likes

Al and Jaak,

The only reason the act labels CO2 as a pollutant is to give broader powers to the EPA to rule on power production using fossil fuels. This is in the act. The discussion below is the court doing its job to tell congress if you do not legislate the EPA de fact does not have the power. Congress and the American public is waking up. Sorry to all the woke mockers, you are on the losing side of a better day to come.

NYT

https://www.nytimes.com/2022/07/01/opinion/supreme-court-epa…

snippet

Chief Justice John Roberts, writing for the majority, agreed with their claim that the E.P.A. did not have the authority to require companies to shift resources to other kinds of power generation. Mr. Roberts wrote that the court’s longstanding policy in such cases of deference to the agency’s own assessment of its authority did not apply because the stakes were too high. It is a theory long championed by Justice Neil Gorsuch, who explained in a concurring opinion that “administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’”

The E.P.A. clearly has the legal authority to set an acceptable standard for emissions, in this case of carbon dioxide, and then to impose restrictions on emitters, in this case coal-fired power plants. The court did not contest these facts. Instead, it ruled that the Clean Air Act does not provide the E.P.A. with sufficient authority to achieve those emissions standards.

2 Likes

So amending the CAA to make it explicit that CO2 is an air pollutant doesn’t do anything to affect the reasoning of WV. So states and industry will continue to be able to successfully push back against EPA if they try to reimplement similar provisions.

========================================================

WV is history as far as Supreme Court decision. As I said before, now EPA can demand that beast available technology (BAT) is used to reduce pollutants including CO2. Does WV have BAT?

Jaak

The law defines greenhouse gases in some sections, but it does not explicitly direct the EPA to regulate carbon dioxide. Instead, it asks the agency more broadly to regulate pollutants that “endanger human health.” In 2007, Supreme Court, Massachusetts v. Environmental Protection Agency, No. 05-1120, Agency ordered To determine if carbon dioxide fits this description. In 2009, the Environmental Protection Agency I concluded that she did.

This conclusion implies that CO2 can be legally defined as a pollutant and regulator. The Obama and Biden administrations used this finding to justify regulations for gasoline vehicles and coal and gas-fired power plants, and several Supreme Court cases have subsequently upheld this authority.

However, since Congress had never directly addressed this issue before, challenges persisted. In West Virginia v. Environmental Protection Agency, No. 20-1530, the landmark ruling this year, conservative Supreme Court justices made clear that if lawmakers really wanted the government to move away from fossil fuels, they had to say so.

“One of the assumptions in the ruling was that Congress did not fully make clear that the EPA had a responsibility to address climate pollution from the energy sector,” said Vicki Patton, general counsel for the Environmental Defense Fund. “Well, now it’s very clear,” she said.

https://www.balkantravellers.com/democrats-designed-the-clim…

Jaak

3 Likes

Al,

CO2 was already considered a pollutant. The supremes took that as fact. The act does not amend that. The act simply states that in building what the law will do to affect future regulations from the EPA to regulate the burning of fossil fuels. The court demanded such out of congress.

Does not matter if the majority of supremes are pro or con the EPA in any regard at all. If the law out of congress were to say never burn a lump of coal again the supremes will agree with that.

This has changed the calculous completely.

I much prefer this calculous. It engages the American public directly. There are results in the offing.

2 Likes

The WV case didn’t involve the definition of air pollutants to include CO2. At all. So amending the CAA to make it explicit that CO2 is an air pollutant doesn’t do anything to affect the reasoning of WV. So states and industry will continue to be able to successfully push back against EPA if they try to reimplement similar provisions.

Albaby

===============================================================

Here is a reference that does not agree with your claims:

Experts like University of California Berkeley professor Dan Farber are especially interested in how the congressional mandates could help court-proof certain regulations forthcoming from the Environmental Protection Agency.

A few of these provisions defining EPA authority “are going to be pretty helpful to EPA lawyers, and in general are going to show that EPA isn’t acting like some kind of rogue woke agency in pursuing some of these climate change measures,” Farber told Bloomberg Law.

That kind of legal boost is useful after June’s ruling in West Virginia v. EPA, the Supreme Court climate battle that curtailed the agency’s ability to broadly regulate power plant carbon emissions.

Justices based their ruling on the major questions doctrine, which requires that Congress must explicitly grant agencies authority to act on far-reaching economic and political issues. By opening up the Clean Air Act and reinforcing that legislative language, the climate law helps insulate the agency from similar legal battles in the future.

The law reaffirms the agency’s mandate to regulate greenhouse gases in an added section 135 of the Clean Air Act, which carves out $87 million “to ensure that reductions in greenhouse gas emissions are achieved through use of existing authorities.”

This could quell future challengers targeting the carbon authority granted in Massachusetts v. EPA, the ruling in a 2007 climate case that allowed the EPA to establish authority to regulate greenhouse gases as air pollutants under the Clean Air Act.

https://news.bloomberglaw.com/environment-and-energy/climate…

Jaak

As I said before, now EPA can demand that beast available technology (BAT) is used to reduce pollutants including CO2. Does WV have BAT?

Yes, they do.

Again, nothing’s changed. The WV v. EPA decision didn’t say that EPA can’t demand BAT to reduce pollutants, including CO2. The decision said that EPA’s power to impose BAT didn’t mean that they could require coal plants to shut down. Rather, the Court said that “BAT” only meant that EPA could require coal plants to include all available technology to reduce emissions as much as feasible. It did not include the power to force the coal plants to shut down.

That doesn’t change with an explicit definition of “pollutant” to include CO2 - because again, WV v. EPA did not dispute that CO2 is a pollutant that EPA can regulate, or that EPA’s power to regulate included the ability to require control technology. It was only a dispute over whether control technology included the ability to force certain plants to shut down.

Albaby

4 Likes

Here is a reference that does not agree with your claims:

Except it doesn’t. Nowhere in that article does it talk about the specific issue that was being addressed in EPA v. WV. It notes that the language will help defend against claims attacking the holding of Massachusetts v. EPA (which upheld EPA’s power to regulated CO2 as a pollutant) - but that wasn’t in dispute in the WV case.

The new law certainly does “reaffirm the agency’s mandate to regulate greenhouse gases,” but since that wasn’t the issue upon which EPA v. WV was decided, it has no effect on that holding.

Albaby

4 Likes

Al,

WV wont be revisited “directly”. If that satisfies this discussion.

But future actions by the EPA when challenged are much more likely to be allowed by the court.

Correct that perhaps?

But future actions by the EPA when challenged are much more likely to be allowed by the court.

Correct that perhaps?

A bit more plausible - certainly the Court isn’t going to revisit or undo Mass. v. EPA.

But I think the Court will still be very receptive to challenges to EPA action, because they’re going to be more receptive to challenges against agency action generally. The legal reasoning used in WV v. EPA wasn’t specific to the CAA - the current Court takes a dim view of agencies exercising authority to the furthest stretches of statutory text. I expect they’ll draw more meaning from the Congress’ failure to include direct regulation of the power sector in the BBB/IRA - the death of the CEPP - than the codification of Mass. v. EPA.

Albaby

1 Like

“The new law certainly does “reaffirm the agency’s mandate to regulate greenhouse gases,””

Perhaps congress should have crafted the law to read ‘regulate by any means necessary’ rather than simply ‘best available technology’