July 01, 2016

Justice Scalia and environmental law—the Clean Air Act Cases

Trish McCubbin

Justice Antonin Scalia participated in nine Supreme Court cases related to the Clean Air Act (CAA), and more often than not he rejected the views of the U.S. Environmental Protection Agency (EPA). Scalia’s reasoning reveals several themes that will continue to play out for years to come, most notably in the ongoing challenges to EPA’s Clean Power Plan.

A focus on statutory text and context

Scalia’s rulings under the CAA demonstrate his well-known textualist approach. What mattered, though, were not isolated words but their context.

  • An interesting example is found in Environmental Defense Fund v. Duke Energy (2007), the only CAA decision in which Scalia agreed entirely with the agency’s reading of the statute. He joined the majority opinion finding that the term “modification” could be interpreted in the Prevention of Significant Deterioration (PSD) program to refer to increases in annual emissions, whereas the exact same term could be interpreted in a different program to refer to hourly emissions increases.
  • In Alaska Department of Environmental Conservation v. EPA (2004), Scalia joined a dissent concluding that when Congress authorized EPA to enforce “requirements” of the CAA, Congress did not allow the agency to veto a state-issued permit. Other CAA provisions demonstrated that if Congress “intends to give EPA general supervisory authority, it says so in clear terms.”

Rejecting cost considerations under the CAA—with an exception

Scalia’s focus on both text and context led him to reject costs as a factor in EPA decisionmaking under two CAA programs, and yet to demand that the agency consider costs in a third program.

  • In a majority opinion in Whitman v. American Trucking Associations (2001), Scalia concluded the CAA does not authorize EPA to take into account implementation costs when it sets national air quality standards. Congress certainly gave no clear approval for that practice, and the “statutory and historical context” demonstrated that allowing cost considerations might cancel out the public health benefits expected from the national standards.
  • In EPA v. EME Homer City Generation, L.P. (2014), Scalia similarly objected to any weighing of costs, but this time he dissented. He would have invalidated EPA’s Transport Rule under the Good Neighbor Provision of the CAA, because EPA took into account the cost-effectiveness of pollution controls when identifying the upwind emissions that contributed “significantly” to downwind air pollution. He contrasted the Good Neighbor Provision with the many other sections of the CAA in which Congress expressly directed the agency to consider costs.
  • Conversely, Scalia penned the majority opinion in Michigan v. EPA (2015) that remanded EPA’s standards for mercury and other hazardous air pollutants from power plants. He concluded that EPA must take into account the plants’ emission control costs when determining whether regulation was, per the statutory provision at issue, “appropriate and necessary.” In that same provision, Congress also required EPA to study the costs of control technologies, and Scalia found that context important.

Rare losses for EPA at Chevron Step 2

If an agency can convince a court that the relevant statute is silent or ambiguous on an issue, then the agency often will prevail at Chevron Step 2 because the court must defer to any reasonable interpretation by the administering agency. In rare cases, however, an agency will lose because the court finds its interpretation unreasonable. Three of those rare examples came in opinions written by Scalia under the CAA.

  • The Michigan decision used Chevron Step 2 and Scalia concluded that “EPA strayed far beyond [the] bounds” of “reasonable interpretation” when the agency ignored compliance costs.
  •  A separate question in the Whitman case (aside from the cost issue discussed earlier) involved the interplay between competing sets of congressional instructions—known as “Subpart 1” and “Subpart 2”—on implementing national air quality standards Scalia found the statute did not clearly indicate how to meld the two subparts, but he nevertheless concluded that EPA’s interpretation was unreasonable because it effectively made Subpart 2 superfluous.
  • In Utility Air Regulatory Group v. EPA (2014) (UARG), Scalia wrote the majority opinion concluding that EPA impermissibly read the CAA to extend permitting requirements to tens of thousands of sources based solely on their greenhouse gas emissions, imposing billions of dollars of costs. Scalia found EPA’s position “unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.”

Climate change skepticism

Scalia was highly skeptical of efforts to regulate greenhouse gases under the Clean Air Act.

  • In Massachusetts v. EPA (2007), Scalia penned a dissent arguing that greenhouse gases are not “air pollutants” under the CAA, and he joined Chief Justice John Roberts’ dissent finding the states lacked standing to challenge EPA’s refusal to regulate greenhouse gases.
  • He continued to express his doubts in the opening paragraph of UARG, when he characterized greenhouse gases as something EPA “believes” contribute to “global climate change.”

Finding preemption and displacement by the CAA

Although Scalia was skeptical of EPA’s efforts to implement the CAA on many different fronts, he was equally doubtful, if not more so, of attempts by others to push even more aggressive agendas.

Implications for the Clean Power Plan

Many of these themes will have implications for the most important CAA case to come—the ongoing challenges to EPA’s Clean Power Plan, which the D.C. Circuit is currently considering. If Scalia were still on the bench, he would surely vote to vacate EPA’s rule, ever the skeptic about climate change in particular and agency overreach generally. He would almost certainly find that the overall context within the CAA makes clear, at Chevron Step 1, that EPA is not empowered to transform the energy sector. Or he would reject as unreasonable, at Chevron Step 2, EPA’s view that shifting electricity generation from high-emitting sources to cleaner sources can be deemed the “best system of emission reduction.” We will have to wait to see how Scalia’s views from earlier CAA cases inform the jurists in this latest litigation.


Further reading
Environmental law jurisprudence and Associate Justice Antonin Scalia’s legacy
The Clean Power Plan stay: Are states placing their pencils down?

Trish McCubbin

Trish McCubbin is a Professor of Law at the Southern Illinois University School of Law. She serves as a vice chair for the Section of Environment, Energy, and Resources’ Constitutional Law Committee and is a contributing author to Principles of Constitutional Environmental Law (J. May, ed. 2011).