Law and not policy is supposed to be the basis upon which courts decide cases. Yet the Supreme Court’s recent decision regarding permitting stationary sources that emit greenhouse gases is full of as much policy as law. The Court’s bottom line is this: The burdens on the states of giving EPA everything it wants are simply too much.
The Clean Air Act regulates pollution-generating emissions from stationary source (factories, power plants, etc.) and moving sources (cars, trucks, planes, etc.). In 2007 in Massachusetts v. EPA the Court held EPA could regulate greenhouse gases emissions from new motor vehicles. As a result of that case, EPA concluded it was required or permitted to apply permitting requirements to all stationary sources that emitted greenhouse gases in excess of statutory thresholds.
In Utility Air Regulatory Group v. EPA the Court held 5-4 that EPA cannot require stationary sources to obtain Clean Air Act permits only because they emit greenhouse gases. But, the Court concluded 7-2, EPA may require “anyway” stationary sources, which have to obtain permits based on their emissions of other pollutants, to comply with “best available control technology” BACT emission standards for greenhouse gases.