Smart. Sharp. Funny. Fearless.
Wednesday, December 7, 2016

To understand the U.S. Supreme Court’s order on greenhouse-gas regulations, I had to read it three times — and I’m a law professor. The complication isn’t a coincidence. It’s the very essence of the imprint that Chief Justice John Roberts is putting on the court.

As its ninth term clicks into gear, the Roberts court has finally developed something like an identity of its own. It avoids highly activist conservative headlines that would drive Democrats to the polls. At the same time, behind a screen of legal complexity, it achieves significant conservative objectives.

The court’s health care decision is an obvious recent example: Roberts cast the deciding vote to uphold mandatory coverage, enraging conservatives and encouraging liberals. But by striking down the provision that pressured states to extend Medicaid, the court gutted the universal coverage that was the Affordable Care Act’s ethical ideal.

The regulation of greenhouse-gas emissions bids fair to produce a similarly confusing result. The court had been asked to review a decision of the U.S. Court of Appeals for the D.C. Circuit that upheld Environmental Protection Agency regulations on greenhouse gases that are the Barack Obama administration’s most significant accomplishments for environmental protection. The court declined to review — and thus left in place — the regulations on motor-vehicle emissions. It also chose not to review the basic question of the EPA’s authority to regulate greenhouse gases. Environmentalists cheered this result.

At the same time, however, the court agreed to review a single, wildly technical-sounding 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.” What this question asks in English, roughly speaking, is whether the EPA was allowed to issue emissions regulations governing factories and power plants under the authority of the law that lets it regulate cars and trucks. And what that means in practical terms is that the court could strike down the Obama EPA’s existing greenhouse-gas regulations for the nonmoving (“stationary”) polluters who create much of the pollution that drives global warming.

Behold the Roberts paradigm! Or don’t behold it: The hand is quicker than the eye. The headline allows environmental regulation to stand. The fine print suggests that the most important part of the existing regulations enacted by the Obama administration could be ditched.

And, remarkably enough, environmentalists are buying into the shell game as well. Some experts hastened to explain that, even if the Roberts court were to strike down the stationary-source regulations on the grounds that they were not authorized by laws permitting regulation of motor vehicles, there would still be other ways under the Clean Air Act to enact such rules. The court’s decision to hear the case, they implied, shouldn’t worry environmentalists too much.

Click here for reuse options!
Copyright 2013 The National Memo