SCOTUS Ruling Limits EPA Regulatory Power

Paul Bland, Jr. is executive director of Public Justice, overseeing its docket of consumer, environmental and civil rights cases. He has argued or co-argued and won more than 25 reported decisions from federal and state courts across the nation, including cases in six of the federal Circuit Courts of Appeal and at least one victory in nine different state high courts. He has been counsel in cases which have obtained injunctive or cash relief of more than $1 billion for consumers. He was named the “Vern Countryman” Award winner in 2006 by the National Consumer Law Center, which “honors the accomplishments of an exceptional consumer attorney who, through the practice of consumer law, has contributed significantly to the well being of vulnerable consumers.” In 2013, he received the Maryland Consumer Rights Coalition’s “Legal Champion” award. In 2010, he received the Maryland Legal Aid Bureau’s “Champion of Justice” Award. In the late 1980s, he was Chief Nominations Counsel to the U.S. Senate Judiciary Committee.

Stefanie Spear is founder and CEO of EcoWatch, a leading news website reporting on environmental news, green living and sustainable business. She has been publishing environmental news for more than 24 years. Spear is president of Expedite Renewable Energy, a consultancy company that manages solar and wind projects, and works on energy policy on the local, state and federal level. Follow @StefanieSpear


JESSICA DESVARIEUX, TRNN PRODUCER: Welcome to The Real News Network. I’m Jessica Desvarieux in Baltimore.

A Supreme Court ruling affecting the Environmental Protection Agency’s regulatory power came down on Monday. It will limit their right to require permits from stationary polluters like power plants on their production of carbon pollution. However, the court also ruled that any plant already required to have a permit for other pollutants, such as carbon monoxide, lead, and nitrogen dioxide, the EPA can insist on those plants to control greenhouse gas emissions.
With us to discuss and understand the effects of this new Supreme Court ruling are our two guests.

Now joining us is Stefanie Spear. She is the founder and CEO of the website EcoWatch.

And also joining us from Washington, D.C., is Paul Bland. Paul is the executive director of Public Justice, which is a public interest law firm.

Thank you both for joining us.

PAUL BLAND, EXEC. DIR., PUBLIC JUSTICE: Thanks very much for having us.


DESVARIEUX: So, Stefanie, let’s start off with you. Justice Scalia came out saying that in his opinion, quote, that the EPA is “getting almost everything it wanted in this case.” Can you first break it down for us? Who would you say is actually the winner and the loser? And did the EPA get everything they wanted? Or did the coal industry actually gain something from this decision?

SPEAR: It’s interesting, ’cause both sides are kind of calling victory. But I do believe that we probably came out as best as we could. The EPA does feel that they got what they wanted. So they are able to still regulate carbon emissions and protect human health and the environment.

DESVARIEUX: Paul, I know you had a little bit of a different take. Can you just jump in here?

BLAND: Sure. I mean, I think that the EPA won an important victory in the short term, and they’re going to be able to do a lot of the regulation that’s necessary to deal with climate change gases and greenhouse gases. But I think that Justice Scalia’s opinion is very troubling, because it really ties the EPA’s hands behind its back for a lot of regulations it might need to undertake down the road. I mean, I think if the EPA had really won, that Justice Breyer’s dissent that was joined by, basically, all four of the Supreme Court justices who were nominated by Democratic presidents would have said that the EPA had the power under the statute to regulate more broadly in the future. And I think, instead, Justice Scalia is really sort of throwing down this warning to the EPA, trying to limit what they can do down the road and using this fiercely critical language, saying that they’re, you know, being extravagant in their statutory reading and that the Congress never would have recognized what they were doing and so forth. And so it’s—Justice Scalia didn’t bite very much of their powers off here, but I think he threatens to do a lot more damage down the road.

DESVARIEUX: Stefanie, can you elaborate a little bit more as to why you see this as a victory over the best that we could get if you’re an environmentalist in this decision?

SPEAR: Well, you know, unfortunately, our environmental laws are constantly being attacked, and this is a perfect case again where the EPA challengers in this case include the Chamber of Commerce, the American Chemistry Council, the State of Texas, again attacking our policies. So it could have come out worse and we could be—the EPA could have been more restricted on its ability to regulate carbon emissions. You know, we were very fortunate in 2007 when the U.S. Supreme Court had a landmark decision saying that carbon dioxide is a pollutant. By making carbon dioxide a pollutant, it gave us the opportunity then to have the U.S. EPA regulate it.

But what’s really unfortunate is that, you know, in 2007, that was years ago now. We’re still trying to fight to keep these laws in order. And, you know, even though I feel this is a victory in the sense that it could have been worse, I really feel we fail still to protect the air for human health and the environment, and certainly for future generations.

DESVARIEUX: Paul, you heard Stefanie talk about how the Chamber of Commerce and groups like them are really trying to chip away at environmental protection laws. Were you surprised by this decision, considering the court’s track record?

BLAND: I’m not sure if I was surprised, in that I would have been surprised if they had gone with, you know, Justice Breyer’s dissent and given EPA everything it wanted.

I have to say, I was really relieved. I think Stefanie makes a really good point when she points to the power of the Chamber of Commerce. Under the last several years of the Roberts court, the Chamber of Commerce has been more successful than basically any interest group in the history of the modern Supreme Court in getting the Supreme Court to take cases that it wants to take and in winning cases. The Chamber of Commerce wins an extremely high percentage of the cases in which it gets involved.

And so whenever the Chamber of Commerce wants something really radical, which—in this case, they were asking for essentially what Justice Alito said in his dissent, which would have stripped the EPA of its ability to regulate greenhouse gases at all. When the Chamber wants something really radical and something that’s not catastrophic happens, then I think most progressives sort of breathe a sigh of relief that, well, you know, at least, you know, we didn’t get hit by the aluminum baseball bat of the real right-wing Supreme Court on this one. But it’s—in that sense, it’s a really good day in that nothing horrendous happened.

DESVARIEUX: Let’s pivot a little bit, and I’m going to ask you both the same question. If the EPA, their policy, was in the interests of the majority of Americans in order to protect the environment, how do you think the Supreme Court should have ruled? I’ll start off with you, Stefanie.

SPEAR: Yeah, I think they shouldn’t have had any restrictions at all on limiting the EPA’s ability to limit carbon emissions. You know, this is about the health and the environment, but this is also about the health of people. I live in Cuyahoga County in Ohio, and right now, under the Clean Air Act, Cuyahoga County fails in fine particulate matter and ozone depletion. So I live in a county that’s in non-attainment air quality. These are laws that were passed a really long time ago, and my county fails to keep us healthy and keep the environment healthy. You know, so that’s how I feel. They should have ruled where there were no restrictions. They ruled in 2007, saying that carbon dioxide is a pollutant. So we know that. So it has to be regulated.

This isn’t about—you know, and there are so many ways to regulate it and still have extremely healthy economy, through efficiency standards, creating green jobs. This isn’t about—you know, this is about human health and the environment. So I do believe the Supreme—I know yesterday was a step in the right direction, and it could have been much worse, but they should have ruled where the EPA has full authority, like they should, to regulate these carbon emissions.

DESVARIEUX: Paul, I’m going to ask you the same question: how should have the Supreme Court ruled?

BLAND: I mean, I think that it’s easy to get tied up in the technicalities of the language and the statute, but climate change is the single biggest threat to humanity of any of our problems. It’s the single biggest problem that the planet faces. And if the greenhouse gases continue to expand, if we just burn every single carbon fuel that’s in the ground, we’re going to end up with a planet that’s unrecognizable, and it’s going to be catastrophic to human life and to—we’re going to see species reduction, we’re going to see the oceans rise, a whole series of really incredibly serious events. And so what the EPA is trying to do is start on a series of steps that will try and rein this in.

And what Justice Breyer said in his dissent was exactly right, that this statute that Congress passed, the Clean Air Act, should permit it to go forward with a variety of steps, not just the initial step that they’re taking, where Justice Scalia says, well, we gave them most of what they wanted, but a lot further.

In the 2007 decision that Stefanie talked about, the Supreme Court said that greenhouse gases were an air pollutant. And, now, so that’s in the general section of the statute early on. Now the EPA’s trying to use a section of the statute that’s more specific further into the statute that refers to “any pollutants”. And Justice Scalia’s saying, oh, well, “any pollutants” doesn’t refer to these gases that would allow the EPA to come in and regulate them. By trying to hold their—by trying to limit what the EPA’s going to be able to do down the road, I think it’s extremely dangerous and it’s a very troubling threat that the EPA in the next battle down the road won’t be able to do what’s necessary to protect human health and to protect, really, the world from climate change gases.

DESVARIEUX: Alright. Paul Bland and Stefanie Spear, thank you both for joining us.

SPEAR: Thanks for having us.

BLAND: Thank you very much.

DESVARIEUX: And thank you for joining us on The Real News Network.