SCOTUS Sharply Limits EPA CO2 Regulatory Power

Investment Analysis Clubs Macro Economic Trends and Risks
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Nor did this case hold that EPA could not regulate CO2 as a pollutant.

I read the decision. Thanks for posting that link.

Page 7: “Carbon dioxide is not subject to a NAAQS and has not been listed as a toxic pollutant.”

Translation, EPA does not have authority to regulate CO2

Page 31: “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisisof the day.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.”

Translation: EPA can’t regulate CO2 and burden JCs with compliance costs without an act of Congress.

Steve

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Page 7: “Carbon dioxide is not subject to a NAAQS and has not been listed as a toxic pollutant.”

Translation, EPA does not have authority to regulate CO2

That’s incorrect.

The Clean Air Act has a number of separate regulatory mechanisms, tasking EPA to create and implement a number of different programs intended to promote air quality. These programs have different requirements, and give EPA different express powers.

The Court’s discussion on page 7 was noting that two of these programs (NAAQS and regulation of toxic pollutants) which are contained in the Clean Air Act do not include CO2 among the pollutants that can be regulated. That doesn’t mean that CO2 can’t be regulated within the other, more generalized enforcement programs other than those two. That’s why EPA turned to a different section (111(d)) of the Act in adopting the Clean Power Plant act.

Your other comment is correct - the Court is clearly saying that EPA can’t adopt the Clean Power Plant regulations without an act of Congress.

Albaby

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If expanded further, what are the ramifications? What power do any regulatory agencies have? Many pieces of legislation are written broadly and/or generally.

I think the answer is, “it depends.”

Nothing in this decision necessarily questions Congress’ ability to write broad or general legislation. Trivially, if Congress had added to the CAA an express requirement that “the Administrator shall promulgate regulations establishing a national “cap and trade” system for the purpose of shifting electrical power generation from fuels that release large amounts of GHG’s to fuels that release fewer or no GHG’s,” then the issue raised in this case would have been moot. That would be some really broad legislation (much broader than the actual CAA, which is actually pretty detailed in a lot of areas) - but it would clearly demonstrate that Congress had reached the decision that they wanted EPA to be doing this sort of thing.

The Court’s opinion is grounded less on an argument that Congress’ grant of authority to EPA was too broad or general, but that Congress never actually intended to give them the power to do this in the first place - that while Congress clearly gave them the power to require people to clean up their factories and power plants, they did not give EPA the power to decide what types of power plants would exist in the U.S. (or in what proportion), just because that has an impact on the environment.

I think that situations that evolved the same way that the CPP did - where there’s an effort to get Congress to act, Congress refuses to adopt a measure, and the Executive then does something similar through regulation based on a pre-existing grant of statutory authority - will go badly for the executive.

Albaby

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That’s why EPA turned to a different section (111(d)) of the Act in adopting the Clean Power Plant act.

Apparently, Section 111, nor any other part of the CAA, explicitly covers GHGs. SCOTUS interpreted it did in Massachusetts v. EPA and ordered the EPA to act accordingly. As we know, there is no such thing as “settled law”, so now the SCOTUS sidesteps Massachusetts v EPA and says it is up to Congress.

Steve…amazing the things I learn here

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As we know, there is no such thing as “settled law”, so now the SCOTUS sidesteps Massachusetts v EPA and says it is up to Congress.

They didn’t ‘sidestep’ Mass v. EPA. The fact that EPA can’t use a cap and trade system to regulate CO2 under their Section 111(d) authority doesn’t mean that they can’t (or aren’t required to) regulate it under any other authority - or indeed under Section 111(d), just in a different way.

Albaby

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The fact that EPA can’t use a cap and trade system to regulate CO2 under their Section 111(d) authority doesn’t mean that they can’t (or aren’t required to) regulate it under any other authority - or indeed under Section 111(d), just in a different way.

I read reference to “cap and trade” in the opinion. I also read that carbon emissions from coal fired plants are already close to an irreducible minimum, so further reduction will require less use of coal fired plants. Coal fired plants could be simply ordered closed, leaving the utility companies to figure out where they will obtain the power needed.

Steve

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I also read that carbon emissions from coal fired plants are already close to an irreducible minimum, so further reduction will require less use of coal fired plants.

CO2 isn’t like other pollutants such as SO2 or particulates or other chemicals. Those other pollutants can be reduced with scrubbers, bag houses, and using low sulfur coal. CO2 is a necessary part of the chemistry of combustion. There is no getting away from it. You burn a hydrocarbon, you produce CO2. Period.

I suppose if the coal plants were all upgraded to supercritical, high temperature and high pressure boilers, then average plant efficiency would go up, which would lower the CO2 produced per kilowatt-hour of electricity. But the improvement will be limited. They would still be burning coal, and coal produces 95 kg of CO2 for every million BTU of heat. Natural gas produces about 53 kg.

If if the rising atmospheric CO2 concentration is an existential threat to all of humanity, doesn’t that threat level rise to requiring a Congressional Act? If CO2 is really a big problem, shouldn’t Congress get involved in developing a plan for the US to greatly reduce its emissions? It is sort of like complaining about Congress never actually declaring war on Iraq (either time) or Afghanistan (or Vietnam, etc.) The constitution gives Congress power to declare war. So, if we are going to war, and all that that entails, shouldn’t Congress take some responsibility and actually make the declaration?

Giving the bureaucrats at the EPA the total power to come up with a strategy for climate change seems like an abdication on the part of Congress.

  • Pete
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The specific regulations it proscribes were never implemented and the Market has already gone further than the regulations’ timetables by pushing money into wind, water, natural gas, and especially solar over the past decade!

In the US, most of the reduction in CO2 emissions in the electricity system has come from replacing coal with natural gas. Going back to 2002 or so, generation from natural gas has increased twice as much as the increase in renewables, including wind and solar. Natural gas is still a fossil fuel, though it burns somewhat cleaner than coal. Hydroelectric capacity is essentially unchanged in the last few decades in the US, so I don’t know why you put “water” on your list.

  • Pete
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Translation: EPA can’t regulate CO2 and burden JCs with compliance costs without an act of Congress.

Steve,

Beg to differ with you.

Translation we wont sit on our behinds any longer as some folks say profits first. During demand side part of the cycle profits and growth are not hard to come by. Only during supply side econ do we lose our manufacturing base to outsourcing.

The country senses opportunities and change. We sense wealth even with the markets plunging.

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The Constitution establishes the government to, for example, provide for the common defense. Outside of declaring war and, maybe, setting rules of engagement, the administration of the war is left up to DoD, previously the War Department. Congress doesn’t micromanage a war, deciding which island to invade, what time, and which troops to use.

Exactly! And the DOD can’t levy a war tax. Only congress can.

The Constitution requires the establishment of a post office, but the daily administration of the postal service is left up to the department.

Yep. And the postal service can’t change the price of stamps without authorization (by the Governors of the USPS, appointed by the executive branch and approved by the senate).

Congress is authorized to levy taxes, but the administration of the tax system is delegated to Treasury.

Now you’re getting to the heart of the matter. The Treasury can administer the taxes but it can’t create tax law or change tax rates.

And now … the EPA can’t effectively tax carbon. Unless Congress creates a carbon tax, passes it, and it is signed by the president into law.

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And now … the EPA can’t effectively tax carbon. Unless Congress creates a carbon tax, passes it, and it is signed by the president into law.

And that is where Massachusetts vs EPA comes in, where SCOTUS decided that the EPA did have authority to regulate GHGs. The court could have simply overturned the Massachusetts case, but took an incremental approach: toss one reg back to Congress, rather than tossing the entire question of GHGs.

Steve

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And now … the EPA can’t effectively tax carbon. Unless Congress creates a carbon tax, passes it, and it is signed by the president into law.
—
And that is where Massachusetts vs EPA comes in, where SCOTUS decided that the EPA did have authority to regulate GHGs. The court could have simply overturned the Massachusetts case, but took an incremental approach: toss one reg back to Congress, rather than tossing the entire question of GHGs.

They didn’t “toss the entire question of greenhouse gases”. They said that the EPA overstepped when it tried to set up a cap-and-trade system.

California has a cap-and-trade system administered by CARB (California Air Resources Board). However, this was done after the state legislature passed a bill to set it up, and the bill was signed into law by the governor. Congress and the president have not done the same.

DB2

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These court decisions in total are timely. The public has strong opinions that lean towards very different outcomes. The prior court decisions were always in a quite honest dispute.

If you, generic, are taking these decisions as wins think twice. The tides are going to shift.

The court is cleaning the slate.

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The EPA can identify the best system of CO2 emission reduction from power generating plants. The EPA can then work with states in their implementation plans to force generating plants to install CO2 emissions control technology. This could get expensive, but that’s what Congress and the courts have said EPA can do.

CO2 capture might cost $100 per ton CO2 ($0.05 per pound). Natural Gas power plants produce about 1 pound CO2 per kWh. CO2 storage would add to the costs, maybe around $0.05 per pound. Levelized Nat Gas costs are now about $0.075 per kWh. Add in $0.05 transmission costs, and electricity could go from around $0.12 to $0.22 per kWh.

The EPA found a less expensive solution but was told by the courts that Congress did not authorize this. So, the EPA will have to implement the more expensive solution.

— links —
Estimated Levelized Cost of New Electric Generating Technologies in 2017 (2010 $/megawatthour)
https://www.instituteforenergyresearch.org/renewable/electri…

“In 2020, total U.S. electricity generation by the electric power industry of 4.01 trillion kilowatthours (kWh) from all energy sources resulted in the emission of 1.55 billion metric tons—1.71 billion short tons—of carbon dioxide (CO2). This equaled about 0.85 pounds of CO2 emissions per kWh.”
https://www.eia.gov/tools/faqs/faq.php?id=74&t=11

Is carbon capture too expensive?, 17 February 2021
“A number of factors can explain the slow uptake of CCUS, but high cost is one of the most frequently heard… CCUS applications do not all have the same cost. Looking specifically at carbon capture, the cost can vary greatly by CO2 source, from a range of USD 15-25/t CO2 for industrial processes producing “pure” or highly concentrated CO2 streams (such as ethanol production or natural gas processing) to USD 40-120/t CO2 for processes with “dilute” gas streams, such as cement production and power generation.”
https://www.iea.org/commentaries/is-carbon-capture-too-expen…

“In a 6–3 ruling issued on June 30, 2022, the Court ruled that the regulation of existing power plants in Section 7411(d) fell under the major questions doctrine, and within that, Congress did not grant the EPA authority to regulate emissions from existing plants based on generation shifting mechanisms, which would have invalidated the Clean Power Plan. The EPA may still continue to regulate emissions at existing plants through emissions reduction technologies.”
https://en.wikipedia.org/wiki/West_Virginia_v._EPA

“consider the results of a public opinion poll conducted in June 2010. One thousand people were asked the question: “How important is the issue of global warming to you personally?” Seventy six percent of respondents said they considered global warming to be extremely important, very important, or somewhat important. Sixty eight percent of people in the same survey also said that the United States should take action on global warming even if other major industrial countries such as China and India do not agree to do equally effective things. However, when asked, “[P]lease tell me whether you favor or oppose the federal government…[increasing] taxes on gasoline so people either drive less, or buy cars that use less gas,” seventy one percent of the survey respondents said they opposed increased gasoline taxes, despite the fact that such a tax would be “one of the logical first steps” we would likely take in an effort to reduce oil consumption and address climate change.”
https://en.wikipedia.org/wiki/Regulation_of_greenhouse_gases…

“United States Environmental Protection Agency (EPA) began regulating greenhouse gases (GHGs) under the Clean Air Act (“CAA” or “Act”) from mobile and stationary sources of air pollution for the first time on January 2, 2011.”
https://en.wikipedia.org/wiki/Regulation_of_greenhouse_gases…

“Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), is a 5–4 U.S. Supreme Court case… the Court held that the CAA gives the EPA the authority to regulate tailpipe emissions of greenhouse gases”
https://en.wikipedia.org/wiki/Massachusetts_v._EPA#Opinion_o…

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The EPA found a less expensive solution but was told by the courts that Congress did not authorize this. So, the EPA will have to implement the more expensive solution.

Excellent!!!

That will force the industry to go to Congress and demand legislation on the better less expensive system.

Beware what you wish for, there is going to be a lot of whiplash.

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The EPA found a less expensive solution but was told by the courts that Congress did not authorize this. So, the EPA will have to implement the more expensive solution.

The Court was rather specific on WHY the EPA can’t do what it has been trying to do. That WHY can be fixed… but not by the Court or the EPA; it’s up to Congress.

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Yep. And the postal service can’t change the price of stamps without authorization (by the Governors of the USPS, appointed by the executive branch and approved by the senate).

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

The Governors of USPS are unelected Administrators just like the EPA Administrator.

Jaak

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They didn’t “toss the entire question of greenhouse gases”.

That is what I said.

They said that the EPA overstepped when it tried to set up a cap-and-trade system.

That is what I said, the court overturned one reg.

DesertDave, mark this down, DrBob and I are on the same page here.

California has a cap-and-trade system administered by CARB (California Air Resources Board). However, this was done after the state legislature passed a bill to set it up, and the bill was signed into law by the governor.

And some guy was trying to have California’s authority to write it’s own regs revoked.

Steve

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The Governors of USPS are unelected Administrators just like the EPA Administrator.

And the service degradation that attracted a lot of chatter about a year ago was instigated by the Postmaster, not by act of Congress.

Steve

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The Supreme Court doesn’t deal with ‘science’ or ‘betterment of human condition’. That is up to Congress to make the appropriate laws that contain specific rules that delegate specific power to the ‘regulatory’ agencies which are part of the Executive Branch.

The Supreme Court ruled that the EPA cannot use powers that were not specifically given to them by the legislation. They can’t ‘expand’ their mission.

No, they are in no one’s pockets.

If you don’t like the laws, let your Congress person know and if there is enough consensus there to pass SPECIFIC legislation that doesn’t violate the Constitution, great.

t.

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The Constitution is does not discuss environmental regulations, nuclear regulations, power generation regulations, air/water pollution regulations, aircraft safety regulations, automobile safety regulations, pesticide regulations, food and drug regulations, etc. etc. etc. etc. etc. etc.

You and the conservatives on the Supreme Court are ignoring the facts. You and the conservatives on the Supreme Court are totally wrong. The only explanation is that they are in the pockets of the fossil fuel industry, the gun industry and the religion industry.

Jaak

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