by David Tibbals, UMN Law Student, MJLST Staff
When does “mobile” mean “stationary”?
Noah Webster’s response should be obvious. But it appears the U.S. Supreme Court is preparing to weigh in on that very question.
Just last week, the Court granted certiorari in the case of Utility Air Regulatory Group v. Environmental Protection Agency, an amalgam of six separate lawsuits questioning the authority of the EPA to broaden its regulation of greenhouse gases. At issue is the EPA’s decision to begin enforcing regulatory and permitting programs against stationary producers of greenhouse gases, such as coal-fired power plants.
The case can be viewed as a direct descendant of 2007’s Massachusetts v. EPA, in which the Court held that the EPA can regulate greenhouse gases, despite the fact that they weren’t actually recognized as “air pollutants” covered under the Clean Air Act. The Court’s ruling, however, was limited to greenhouse gases emitted by mobile sources, namely new automobiles.
Although the Court’s grant doesn’t challenge the general characterization of greenhouse gases as “air pollutants,” it poses a single question, the answer to which could effect a dramatic change in agency rulemaking. Is the EPA allowed to “trigger” permitting requirements for stationary sources based solely on its past regulation of mobile sources?
In essence, does “mobile” mean “stationary”?
The only prudent answer to that question is an emphatic “no.” Allowing the EPA–or any agency, for that matter–to premise broadened jurisdiction in such a manner vests an inordinate amount of power in a body well-nigh immune from the political process. Although it’s heretical to mention in a post-Chevron world, Locke and Montesquieu urged the incompatibility of such extra-legislative lawmaking power with democratic principles.
But a more eye-opening reason for answering in the negative is the adverse economic blow such expanded regulation will strike. Expanding regulation to “stationary” sources–an incredibly equivocal characterization–will inevitably result in increased compliance costs. This increase is already being realized by producers and consumers alike; a power company in Mississippi has raised electricity rates by 15% this year to fund a new, fully-compliant plant.
By the way, that new plant has already run $1.4 billion over budget.
The Court is expected to announce its judgment next summer. If it is interested in relying on democratic principles and catalyzing a languid economy, it will overrule expanded regulation and prevent the EPA from further soiling the Clean Air Act.
During a time when environmental issues flood the headlines of newspapers, magazine covers, and television broadcasts, it is hard not to come across sustainable efforts by