WASHINGTON — The Obama administration's drive to regulate greenhouse gases could hit a snag at the Supreme Court next week as industry groups and Republican-led states ask justices to block what they call a "brazen power grab" by the president's environmental regulators.
Amid legislative inaction in a deadlocked Congress, the Environmental Protection Agency adopted regulations in 2011 that require new power plants, factories and other such stationary facilities to limit carbon emissions.
The agency said the rules were justified by a 2007 Supreme Court ruling that held that carbon dioxide, methane and nitrous oxide — seen as the chief culprits behind a warming planet — are air pollutants subject to EPA regulation under the Clean Air Act.
In that decision, four conservative justices dissented, insisting that the law covered only air pollutants that make it hard to breath, such as smog, not those that act to trap solar energy in the atmosphere and contribute to climate change.
Now, the dispute is back for Round 2 in the high court in a legal fight over how far the EPA can go in adapting the 1970s-era antipollution law to the 21st century's gravest environmental problem.
It is also a political fight, with a partisan lineup similar to the healthcare case two years ago.
Texas, Florida and 15 other Republican-led states joined with business and energy groups in accusing the president and his EPA of overstepping their authority. California, Illinois and 13 other Democratic-led states joined with environmentalists in supporting the EPA's rules.
The case, to be argued Monday, is the latest example of an increasingly familiar Washington clash: The Obama administration uses executive authority to get around gridlock on Capitol Hill in pushing its agenda, then Republicans accuse the president of acting lawlessly in pursuit of progressive policies.
Politics aside, the case involves a dense set of regulations and asks only whether the EPA may restrict greenhouse gases coming from stationary sources.
In Obama's first year in office, the EPA set in motion rules that require new motor vehicles to burn less gasoline and reduce their carbon emissions. Those rules were upheld when the high court declined to hear a challenge against them. Obama this week announced plans to expand on such regulations with new limits on carbon emissions from trucks and buses.
But when the EPA tried to expand those rules to stationary facilities, industry leaders and Republican-dominated states argued that the agency had gone too far. Justices agreed last year to consider six different appeals of the rules.
Typically, stationary facilities would include power plants, but the challengers said the regulations could potentially extend to millions of others, including hospitals, shopping malls and universities.
The U.S. Chamber of Commerce said the new rules, if put into full effect in 2016, would "erect the costliest, farthest reaching and most intrusive regulatory apparatus in the history of the American administrative state."
The regulations "mean we would see the cost of energy go up dramatically," said Richard Faulk, a Washington lawyer who represented local and state chambers of commerce. "And that would put a very serious burden on small business. And the administration is trying to do this unilaterally."
Environmentalists accused industry officials of greatly exaggerating the reach of the EPA's new rules and their likely cost. They noted that federal regulators have only targeted new and major emitters of carbon dioxide, such as power plants, not the vast number of facilities that produce carbon pollution.
To obtain a permit, new facilities must use the "best available technology" to reduce their greenhouse gases. That can be done by switching from coal to natural gas, environmentalists say.
The Democratic-led states, in a brief filed with the court, pointed to the "recent practical experience" in California and New York showing that switching to low carbon energy sources can produce "more efficient and less polluting industrial processes, delivered at a reasonable cost."
Environmental lawyers said the energy-industry advocates are trying to re-fight a battle that they already lost. "They are still seeking a total exemption for greenhouse gases," said Sean Donahue, a Washington lawyer for the Environmental Defense Fund.
Once again, all eyes will be on Justice Anthony M. Kennedy, who usually holds the deciding vote when the court is split. He joined the 5-4 opinion in 2007 that cleared the way for regulating greenhouse gases. But since then, he has voiced concern for over-regulation by the administration.
Most environmental law experts said they were confident that the greenhouse gas regulations will survive. The justices turned away appeals that asked them to reverse the 2007 ruling or stop the motor vehicle regulations.
"I think the court will uphold the EPA," said Ann Carlson, who teaches environmental law at UCLA. "The statutory language is pretty clear."
Once it is decided that greenhouse gases are harmful air pollutants, the law says EPA has a duty to regulate, she said.Copyright © 2015, The Baltimore Sun