Michigan challenge to EPA greenhouse regulations to be heard by U.S. Supreme Court

Nov 5, 2013

The U.S. Environmental Protection Agency wants to regulate carbon emissions of coal-burning power plants and other smokestack industries. Michigan's Attorney General joined a lawsuit against the EPA that will be heard by the U.S. Supreme Court.
The U.S. Environmental Protection Agency wants to regulate carbon emissions of coal-burning power plants and other smokestack industries. Michigan's Attorney General joined a lawsuit against the EPA that will be heard by the U.S. Supreme Court.
Credit Lester Graham / Michigan Radio

The EPA says greenhouse gases are pollution. The Supreme Court has agreed. But Michigan sued the EPA saying you can’t regulate that pollution from smokestack industries because it would hurt the economy.

The Supreme Court has already ruled the EPA has the authority to regulate the carbon emissions that contribute to climate change. The agency found CO2 emissions from fossil fuels endanger the public health and the environment. That was regarding a case involving cars and trucks. But whether that pollution comes from a tailpipe or a smokestack, it’s the same pollution.

So, the EPA figured the Clean Air Act required it to regulate that pollution coming from smokestack industries such as coal-burning power plants.  They’re the biggest emitters of CO2.

Sean Donahue is an attorney for the Environmental Defense Fund and other environmental groups who've defended the EPA’s proposed regulations.

“So EPA views –and my clients and the environmental groups and the many states that are on EPA’s side—agree with the EPA’s reading of the Act which speaks in terms of any air pollutant and any pollutant subject to regulation under the Act as automatically applying,” Donahue said.

The smokestack industries sued to stop the EPA. So did the state of Michigan along with about a dozen other Republican-led states.

It’s now going to the U.S. Supreme Court.

Michigan Attorney General Bill Schuette’s office didn’t make anyone available for an interview, but it did send an email which states, “Attorney General Schuette opposes new burdensome EPA regulations due to the strain they would put on Michigan’s fragile economy.”

David Uhlmann is a professor of law at the University of Michigan.  He also worked at the U.S. Department of Justice as chief of the Environmental Crimes Section.

He says it’s true. There will be economic costs to limiting smokestack carbon emissions. But, he added, they’re nothing compared to the economic costs of climate change which could cause coastal cities to flood, long droughts, and untold global disruption.

“Global climate change, if it continues unabated, is going to make the economic crisis that we’ve seen over the last several years look like child’s play, economic costs far beyond the cost of transitioning to the green economy which is where the EPA and the Obama administration is trying to drive our economy today,” Uhlmann said.

Another argument made by opponents of reducing carbon emissions is that countries such as China and India will continue to pollute, making a U.S. attempt to reduce greenhouse gases pointless. Uhlmann says the U.S. is the richest nation in the world and it has an obligation to lead on this issue.

“So, the notion that we can’t do it unless the rest of the world is doing it at the same time I think is misguided, I think fails to see the value in American leadership; second, because we’ve contributed more per capita than any other nation to the problem of climate change; and third, because the harmful effects of climate change that we’ve helped bring to the planet is going to be felt in other countries long before ours, we have a moral obligation to address it,” Uhlmann said.

While the U.S. Supreme Court considers the challenges to EPA’s authority under one part of the Clean Air Act, the Obama administration is simultaneously taking another tack using another part of the Clean Air Act’s rulemaking process.

Environmental Defense Fund’s attorney, Sean Donahue, says even the Supreme Court blocks the EPA in its current approach to regulate carbon emissions, there are other ways to mandate greenhouse gas reductions.

“Whatever the Court says in the case that’s going to be heard early next year is unlikely to have any direct bearing on those ongoing rulemakings,” Donahue said.

That leaves Michigan smokestack industries likely facing some kind of carbon emissions regulation. Michigan relies on the carbon-intensive fuel coal more than most other states. Nationwide, on average, coal provides 40 percent of electric power. In Michigan it’s more than 60 percent.