Court ruling limits EPA's power

Jun 27, 2014

— Supreme Court ruling was mixed from agricultural perspective, but welcomed

The American Farm Bureau Federation (AFBF) welcomes the U.S. Supreme Court’s June 23 ruling that limits the U.S. Environmental Protection Agency’s regulation of so-called greenhouse gases to the largest sources of emissions, curbing its ability to impose restrictions on smaller operations such as farms and ranches.

Ellen Steen, General Counsel for the AFBF, said while the nation’s highest court did not give the agricultural industry a complete victory in its 5-4 decision that has been awaited for a long time, it did rein in EPA’s regulation of greenhouse gas sources.

“We are pleased, very pleased, with the rejection of this effort to take on the discretion to regulate hundreds of thousands of sources, including farms,” Steen told the Western Livestock Journal. “It’s a tremendous relief to see that happen.”

The Supreme Court’s complex decision written for the majority by Justice Antonin Scalia has restored her confidence in the U.S. government’s system of checks and balances, Steen said.

“This administration has been remarkable in its willingness to make new law to the point of rewriting laws as it did with this rule,” she said, mentioning the EPA has been turning out new rules under the auspices of the U.S. Clean Air and Clean Water Acts, stepping way past the bounds of its power.

Steen explained that the Supreme Court’s EPA ruling was issued in three parts, with the first two parts taking the EPA to task, while the third part upheld the EPA’s power to regulate greenhouse emissions from large sources.

The EPA has contended that it has the authority to require two types of permits, including one pertaining to carbon dioxide, which the Farm Bureau attorney noted is “ubiquitous in the environment and emitted in large quantities by lots and lots of sources.”

The Clean Air Act requires very onerous, substantive and procedural hoops to clear in terms of complying with pollution standards, which the EPA says should include carbon dioxide emissions, Steen said. The EPA has argued it can impose permits based only on greenhouse emissions, which would impact farms, schools, shopping centers, etc., tailoring its requirements.

“In those two rulings together, the court really just smacked down this overreach and eliminated EPA’s effort to give itself discretion to regulate millions of sources through these very cumbersome rules, eventually biting off as much as it wanted to chew,” Steen said.

The Supreme Court did allow the EPA to regulate greenhouse emissions from large industrial sources whose other pollutants are already regulated, she noted. New construction and major modifications of existing plants can trigger this regulation regime, she said. The EPA also can require the Best Available Control Technology for major sources.

The Farm Bureau is concerned there’s a risk that the EPA could be overly stringent with those sources, stifle other industries and hurt the ability to generate electricity.

“We’ll have to wait and see if EPA sticks to what the court said, watch closely and hold their feet to the fire,” Steen said. “Most agricultural activities would be way short of triggering these thresholds that would make them subject to EPA requirements.”

Some large ag sectors, however, generate large amounts of particulate matter or dust. Some Concentrated Animal Feeding Operations (CAFOs) such as livestock feedlots also can emit some quantities of sulfur dioxide and nitrogen dioxide, Steen said.

The Clean Air Act sets 100 or 250 tons a year, depending on the source, as the pollutant emissions threshold for when permits are needed. For greenhouse gas emissions, the EPA changed this to a more lenient 100,000 tons per year.

In 2007, the Supreme Court held the Clean Air Act gave the EPA authority to regulate greenhouse gases. In Monday’s ruling, Scalia wrote: “We reaffirm the core administrative law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” — Mark Mendiola, WLJ Correspondent