WLF asks U.S. SC to reject EPA 'power grab' in case over greenhouse gases

By Jessica M. Karmasek | Dec 19, 2013

WASHINGTON (Legal Newsline) -- The Washington Legal Foundation is asking the U.S. Supreme Court to reject the federal Environmental Protection Agency's claimed legal basis for expanding its regulation of greenhouse gases.

The foundation filed its 19-page amicus brief in favor of reversal Monday.

WLF argues that the EPA's regulatory scheme is likely to impact the entire economy, and a decision in the agency's favor could set a "dangerous" precedent.

"As set forth in WLF's earlier amicus brief in support of certiorari, the EPA regulations at issue here are just the first step in an overall program of GHG (greenhouse gas) regulation that will eventually touch all sectors of the economy," the brief states. "As WLF showed, because the economy runs on fossil fuels, and because CO2 is the inevitable byproduct of combusting fossil fuels, the power to regulate CO2 emissions is the power to regulate virtually everything.

"Thus, a decision to affirm the court below and to sanction the EPA's rewriting of plain statutory text would give the EPA unprecedented discretion to regulate the entire economy according to its own conception of how to do so rather than Congress'. Worse, given the holding of the court below that no party had standing to challenge the Tailoring Rule, this unprecedented discretion would not be judicially reviewable.

"Such an outcome should be avoided at all costs."

The case, Utility Air Regulatory Group v. EPA, arises from administrative rules adopted by the EPA in the wake of Massachusetts v. EPA to regulate greenhouse gases as "air pollutants" under the Clean Air Act.

WLF argues in its brief that the EPA has seized on the Supreme Court's narrow ruling in Massachusetts, which authorized the agency to regulate greenhouse gas emissions solely from motor vehicles.

In October, the nation's high court granted review in Utility Air Regulatory Group and granted petitions for writs of certiorari in five other, related cases: Texas, et al. v. EPA, et al.; American Chemistry Council, et al. v. EPA, et al.; Energy-Intensive Manufacturers v. EPA, et al.; Southeastern Legal Foundation v. EPA, et al.; and the U.S. Chamber of Commerce, et al. v. EPA, et al.

The high court granted all six petitions limited to the following question:

"Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases."

The court hasn't yet scheduled oral arguments; however, they could take place in February.

According to the court's order granting the petitions, a total of one hour will be allotted for argument.

"The EPA's warped regulatory theory would expand greenhouse gas regulation, on a timetable of EPA's own choosing, to the entire economy in violation of statute," WLF's Senior Litigation Counsel Cory Andrews said in a statement Monday.

"It is therefore vitally important that the court clarify the intended scope of EPA's authority, before this regulatory mischief spreads further."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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