EPA Regulation of School Emissions Unlikely Under Supreme Court Ruling

By Mark Walsh — June 23, 2014 3 min read
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The Environmental Protection Agency will not be regulating schools over the emission of greenhouse gases such as carbon dioxide anytime soon under a U.S. Supreme Court decision on Monday.

The federal agency would say it was seeking to avoid regulating greenhouse gases at schools, apartment buildings, hospitals, and other large facilities, for now, by tailoring a rule under the Clean Air Act so it would only affect power plants and other large emitters of such air pollutants. But industry groups have said they were not so sure that such regulation wouldn’t come within a few years if the high court had upheld what the groups viewed as the EPA’s illegal regulatory rewrite of the clean air statute. And, indeed, the agency itself has acknowledged in regulations that it would not flat-out exempt smaller facilities from an eventual expansion of permitting requirements.

In its decision in Utility Air Regulatory Group v. Environmental Protection Agency (Case No. 12-1146), the Supreme Court sided with the industry groups on that issue.

“In the Tailoring Rule, EPA asserts newfound authority to regulate millions of small sources—including retail stores, offices, apartment buildings, shopping centers, schools, and churches—and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate,” Justice Antonin Scalia wrote for the majority in a 5-4 part of the decision. “We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery.”

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. joined him. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan dissented on that point.

The court ruled 7-2 that the EPA could require certain large sources of greenhouse gases, typically power plants that already must get permits based on their emission of conventional pollutants (such as mercury or sulfur dioxide), to take steps to control greenhouse-gas emissions. Alito and Thomas were the dissenters on that issue, with Alito saying the rules for controlling conventional pollutants were ill-suited to be applied to greenhouse gases.

Regulating School Water Heaters?

Congress amended the Clean Air Act in 1977 to require permits for the construction or modification of any stationary source of pollutants that exceeded a tonnage parameter that was specified in the statute. The legislative history of the amendment suggest that lawmakers were targeting factories and power plants, and did not intend the EPA to regulate “dairies, farms, highways, hospitals, schools, grocery stores, and other such sources,” as a congressional report put it.

In a 2007 decision, in Massachusetts v. EPA, the Supreme Court upheld the authority of the agency to regulate greenhouse gases. The EPA started regulating such emissions from vehicles, which triggered its authority to also regulate greenhouse gases from stationary sources such as power plants. But the statutory threshold for pollutants from stationary sources were a poor fit for greenhouse gases such as carbon dioxide, which are emitted in far higher volume than other pollutants.

The agency itself warned its decision to regulate greenhouse gases could sweep in schools, hospitals, apartment buildings, and even large homes, resulting in “an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land.”

The EPA’s answer was the so-called Tailoring Rule, adopting a phased-in approach to regulating greenhouse gases at the largest-emitting facilities. But industry groups say the agency has not ruled out eventually regulating greenhouse-gas emissions from schools and other smaller sources.

“Countless numbers of buildings, including churches and schools, would be subjected to EPA permitting requirements based on the CO2 emissions from their water heaters,” Texas and 12 other states said in a brief in the case decided Monday.

Under the 5-4 part of Scalia’s ruling, school water heaters are safe from EPA regulation for the foreseeable future.

A version of this news article first appeared in The School Law Blog.