ON-Lion Letter

Although the U.S. Supreme Court criticized the U.S. Environmental Protection Agency's (EPA's) regulatory overreaching in a decision announced in June, it upheld the EPA's efforts to regulatorily limit greenhouse-gas emissions from sources like power plants under the Clean Air Act.

In Utility Air Regulatory Group v. EPA, "[o]nly two Supreme Court justices, Justice [Samuel] Alito and Justice [Clarence] Thomas, rendered a correct decision finding that greenhouse gases are ‘fundamentally incompatible’ with any provision of the Clean Air Act Prevention of Significant Deterioration program ...," according to William Yeatman, an energy expert and senior fellow at the Competitive Enterprise Institute (CEI) in Washington, D.C.  CEI, which asked the Court to take the case, is substantially supported by The Lynde and Harry Bradley Foundation in Milwaukee.

"As a result of this unfortunate ruling, the EPA will continue to try to hammer a square peg," regulating greenhouse-gas emissions, "into a round hole," a title of the Clean Air Act, Yeatman continued.  "It should be noted that there are no actual environmental improvements attendant to EPA’s climate rules, because they won’t in any way impact climate change.

"There is a possible silver lining," however, Yeatman said.  "In the course of permitting EPA regulatory regimes for visibility improvement and interstate pollution ..., the Supreme Court had previously facilitated an expansion of EPA discretion to interpret the Clean Air Act however the agency saw fit.  With today's ruling, we at least have established a line in the sand regarding deference to agency decision making:  The agency will not be permitted to blatantly re-write laws, but this is a pretty low bar.”

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