By GREG STOHR and MARK DRAJEM
US Supreme Court justices questioned whether the Environment
al Protection Agency
had authority to impose permit requirements on power plants
and factories in a test of President Barack Obamas
In a 90-minute session sprinkled with references to football
games and Dunkin Donuts, the court heard arguments from
industry groups and Republican-led states over one aspect of
the agencys effort under the Clean Air Act.
The justices hinted they might rule narrowly, perhaps by
allowing greenhouse-gas limits on facilities that already
must get a permit for other types of emissions. The justice
likely to provide the swing vote, Anthony Kennedy, asked just
a handful of questions. Early on, he suggested he wasnt
interested in revisiting the courts 2007 decision
letting the EPA regulate carbon
Later Kennedy told an Obama administration lawyer defending
the EPA policy
, I couldnt find
a single precedent that strongly supports your
The industries primarily affected by the requirements are
power plants, chemical facilities
, oil and gas project
s and cement plants,
according to the EPA. Companies that have applied for permits
include Calpine, ExxonMobil and Occidental Petroleum.
States and business groups say the permit rules ultimately
may affect millions of facilities, including bakeries and
The EPA says it is avoiding that outcome, at least for now,
by relaxing the threshold that normally triggers a permit
requirement. The Clean Air Act generally requires a permit
for sources that exceed either 100 tons or 250 tpy of a
Peter Keisler, the lawyer representing the challengers, told
the justices that the permit program was designed to address
local pollution, not the worldwide effects of greenhouse
Justice Elena Kagan said Keislers interpretation of the
Clean Air Act -- excluding greenhouse gases from the permit
requirement altogether -- was equally hard to square with the
The conundrum that this case raises is that everybody
is violating a statutory term, Kagan said. When that
happens, the agencys interpretation should get
deference, she said.
The effect of the permit program so far has been limited.
Since 2011, 141 greenhouse-gas (GHG) permits have been
issued, about half for new facilities
and half for the expansion
of existing ones,
according to the EPA.
The EPAs biggest greenhouse-gas initiative, its
proposed rules directly limiting emissions
from power plants,
isnt at issue in the Supreme Court case. The Obama
administrations top Supreme Court lawyer, US Solicitor
General Donald Verrilli, told the justices that the
permitting rules are an important complement to the
Unlike the caps, the permit rules are already in effect, and
they apply to refineries and cement makers as well as power
This is an urgent problem, Verrilli said.
Every year that passes, the problem gets worse and the
threat to future generations gets worse. And I think, faced
with the obligations that EPA had, it made the most
reasonable choice available to it.
Several justices asked whether Verrillis approach would
mean EPA regulation of events such as football games and
large family gatherings. Verrilli said that wouldnt
happen. The goal of the transition is not to gradually
expand the permitting requirement until theyve got all
the Dunkin Donuts in America under it, he said.
Chief Justice John Roberts pointed to court documents
indicating that the EPA could accomplish the vast majority of
its objectives by regulating greenhouse gases only from facilities
that already must get
permits for other emissions.
Under questioning from Justice Sonia Sotomayor, Verrilli
later suggested that an approach along those lines might
offer a narrow way to resolve the case.
Thats the rifle-shot solution, to the extent that
the court thinks its a problem, he said.
The EPA concluded after Obama took office in 2009 that
greenhouse gases pose a danger to public health and the
planet. The agency followed up by placing new emissions
standards on cars and
The high court case centers on the EPAs next step, when
it used the vehicle-emission rule as a basis to also set
permit standards for factories and other stationary sources.
The EPA says those requirements were automatically triggered
once the agency found that greenhouse gases were enough of a
threat to warrant vehicle regulations.
The agencys interpretation drew skepticism from
Justices Antonin Scalia and Samuel Alito.
In the entire history of federal regulation, what is
the best example you can give us of an agencys doing
something like this, where it has taken a statute with
numbers and has crossed them out and written in the numbers
it likes? Alito asked.
The court gave the EPA a preliminary victory in the case in
October, refusing to consider arguments that would have
barred the agency from addressing climate change at all. That
left states and business groups fighting the permit rules.
The court will rule by July.