A February 25 Governing article reported that during recent arguments before the United State Supreme Court, the Court seemed to question the approach the United States Environmental Program Agency (EPA) has been taking towards the regulation of greenhouse gases.  While the authority of the EPA to regulate greenhouse gases was not at issue in the case (the Court found the EPA had such authority in a 2007 ruling), industry groups and more than a dozen states were objecting to how the EPA is carrying out its enforcement authority.  The article noted that at least 18 states supported EPA’s current approach.

A majority of the U.S. Supreme Court seemed skeptical Monday of the Obama administration’s approach to regulating greenhouse gas emissions, in a case that tests the Environmental Protection Agency’s authority and has divided the states.  …

Specifically, those challenging the EPA say it is reading too broadly its authority to regulate greenhouse gases, carrying over limits from vehicle transmissions and applying them to stationary sources such as power plants. They also say the EPA is picking and choosing which parts of the law to enforce by establishing a permitting scheme for greenhouse gas emitters, because its threshold for when those regulations take effect is above the law’s limits.

The government argues a lower limit would potentially ensnare millions of buildings nationwide beyond the intent of the regulations, including public schools and some apartment buildings. It argues lessening the requirements allows for a transition and allows regulators to target only the most worrisome polluters.  …

By the end of the arguments, even some of the more liberal justices seemed skeptical of the liberties the Environmental Protection Agency had taken on greenhouse gas emissions. Justice Elena Kagan seemed troubled at times by some of the agency’s decisions. And Justice Sonia Sotomayor asked Solicitor General Donald Verrilli what, in essence, would be the best way for the government to lose its case. (She apologized in advance of the question, saying she knew litigators hated being asked that question in court.)

Only Justice Stephen Breyer seemed willing to make a clear case for deferring to the agency and allowing “reasonable” exceptions to the law’s enforcement.

But it was Justice Anthony Kennedy (who was the fifth vote with the four liberals on the court at the time of its 2007 ruling) who pointedly challenged Verrilli, just minutes after stressing that the government’s broader authority to regulate greenhouse gases wasn’t in question.

“I couldn’t find a single precedent that strongly supports your position,” Kennedy said, referring to Verrilli’s brief in the case, and asking him to give him an example to cite in a potential ruling in the government’s favor.

“There aren’t a lot of cases, that’s true,” Verrilli replied, before going on to defend the agency’s approach, citing other cases, including some hypotheticals, where an agency is given leeway to decide how best to enforce regulations that leave precise methods or limits ambiguous.