EPA Carbon Rules in Supreme Court’s Hands: Pray for Justice & Sense

“Confronting climate change should be an issue that unites rather than divides us. And that includes the Supreme Court. Here’s hoping the justices make the right call.” Christine Todd Whitman, former GOP Governor of New Jersey

As we all know, the Environmental Protection Agency has proposed rules to regulate the amount of greenhouse gas pollution that new electric power plants can emit. Not surprisingly, the coal and oil industries have pulled out all stops to make sure they don’t succeed. They’ve lobbied hard against the effort, but their efforts have been overwhelmed by a flood of normal citizens demanding climate action.

So they’ve looked to the courts to protect the status quo of cost-free polluting. So far, they haven’t had much success. They’ve sued – and lost – right up the judicial chain. Last stop was the D.C. Circuit Court of Appeals, where a panel of judges appointed by presidents of both parties found that the EPA’s plan to limit power-plant greenhouse gas emissions was “unambiguously correct” and “statutorily compelled.”

So now it’s inthe hands of the Supreme Court. You’d think that this would be a simple matter for them. But it’s not. That’s because the industry plaintiffs have focused on an arcane, technical argument that makes this a risky matter in the hands of Justice Roberts’ court. Granted, the Clean Air Act requires the EPA to regulate pollutants. And the Supreme Court has ruled that greenhouse gases like CO2 emissions are clearly pollutants. No one questions that.

But here’s the catch: Back when the Clean Air Act was written, Congress had to establish a threshold for action: Who’s big and bad enough to focus on, and who is so small that regulation would be impossible or intrusive? How to distinguish between major and minor emitters?

Back then, before we – as a country and world – understood the peril of carbon pollution, we thought of pollutants as things like mercury, sulfur and industrial chemicals like HFCs – all emitted in comparatively small amounts. So the threshold for being a major emitter was set at the low level of 100 to 250 tons of pollutants per year. That worked. We got the big guys, and the little ones came along on their own.

Electric plants like this Ohio coal-fired plant emit 38% of U.S. CO2

Electric plants like this Ohio coal-fired plant emit 38% of U.S. CO2.

But then came climate chaos and global-warming emissions. Carbon emissions became the world’s biggest environmental threat. But carbon is different. With the average American individual responsible for 17 tons of CO2 per year, any corner grocery store or elementary school would be a “major emitter” when it comes to climate-changing pollutants under the law as written. So the EPA did the sensible thing, focusing only on those emitting 100,000 tons or more of CO2.

“Foul play!” cried the industry. If you want to regulate us, then you have to show up at every 7-Eleven or Dunkin’ Donuts! It’s there in the law: 100 to 250 tons per year! Who are you to rewrite the rules to focus only on us?

It’s a time-tested strategy for polluters: Set the bar for regulation so low that no agency could ever hope to get started with any regulation whatsoever.

And to hear reports from yesterday’s Supreme Court arguments, it sounds like they’ve got some converts on the bench. The issue isn’t whether climate change is real and caused by manmade carbon emissions. It isn’t whether it’s harmful to human health. It isn’t whether the EPA is required to act. The Court crossed those bridges back in 2007. It’s whether the EPA has the discretion to develop action plans and regulatory thresholds based on unfolding science since the law was passed.

I suspect that the justices would do well to look to America’s faith communities for some guidance here. Christians, Jews and others have long wrestled with today’s application of scriptures written in antiquity. And we’re seldom troubled by rigid literalism.

Consider the prophet Isaiah, revered by Christians, Jews, Muslims and Baha’is. Almost three thousand years ago, he foresaw the reign of peace ushered in by God’s kingdom on earth:  “[God] shall judge among the nations, and shall rebuke many people,” he wrote; “and they shall beat their swords into plowshares, and their spears into pruning hooks; nation shall not lift up sword against nation….”

Sword into plowshares. We’ve all heard those verses, haven’t we? But let’s think for a minute: When was the last time we held a sword, let alone used one in anger? And what’s a plowshare, anyway? Is this even relevant today?

Of course, we People of the Book have long since gotten over this sort of problem. We’re prepared to think of God’s kingdom laying down its assault rifles and nuclear arms, in favor of farm equipment and medical supplies. The language of God-breathed scripture is always spoken within a cultural context, but its truth endures to all generations. We don’t rest our oxen on the Sabbath, but we rest our modern means of production. We honor the God who causes the Earth to rotate faithfully every 24 hours, even if our scriptures tell us that the setting sun “hurries back to where it rises.” We take up our crosses, even if crucifixion has mercifully been banned for many centuries.

Perhaps the Supreme Court has a little something to learn from us in this. The Clean Air Act was enacted in a historical context. It demanded that the EPA act limit harmful pollutants. And it permitted it to focus on major emitters, rather than every Tom, Dick and Harry.

Christine Todd Whitman, a Republican governor who ran the Bush Administration’s EPA gets it just about right in an editorial today:

“Climate change is the defining environmental challenge of our time, and there are huge consequences for inaction — whether measured in human lives or economic disruption…. Today, gridlock and partisanship make common-sense action all but impossible…. Far from ‘rewriting’ the statute or bending the law to fit its climate change agenda, the Obama administration simply interpreted the law in the same way as its predecessors — this time to cover greenhouse gas emissions.”

We pray that God gives the Supreme Court the wisdom to understand what’s at stake, and to rule with common sense and justice.

Leave a Reply