What is the likelihood that the Supreme Court will take review of EPA’s greenhouse gas regulations?

On Friday, Texas lead a group of states in asking the Supreme Court to hear (and overrule) the DC Circuit case of last year upholding EPA’s regulation of greenhouse gases from stationary sources. A group of industry representatives have joined in asking for Supreme Court review. Given the DC case and Texas’s petition for certiorari, I think it unlikely that the Supreme Court will hear the case. Even if the High Court does hear the case, I think it unlikely to reverse the DC Circuit, at least in a way that would be to Texas’s and regulated industry’s liking.

The Texas petition cites three reasons for granting review: the legality of the EPA “tailoring rule,” the legality of EPA regulation under the CAA at all given “Congressional intent,” and the possibility of reversing the Supreme court’s own Massachusetts v. EPA case (which declared that EPA had jurisdiction to regulate such gases.)

Here is my rundown of the purported reasons to grant review.

1) Legality of EPA’s tailoring rule. The DC Circuit did not reach this because it held that state petitioners did not have standing, in particular that the states could show no injury by the action (in fact it gave them less regulation). This is a somewhat unusual standing issue from an unusual case and legal issue. I believe the DC Circuit was correct. The recent Supreme Court precedent has been quite strict on standing issues (demonstrated recently by questions in the California marriage case). However, the court is hard to predict, and there is a possibility that the Court could take the case for this reason and reverse on standing. The problem for Texas and the other states, however, is that even if the Supreme Court did reverse on standing, and even if it did overturn the “tailoring rule” as being against statutory requirements (against which EPA still has some plausible arguments), this would simply mean that greenhouse gas regulation would cover infinitely more sources. Texas might be convinced that Congress would then rush in to change the Clean Air Act, but as we have all seen, getting things done at all in this Congress would be very difficult.

2) Whether Congress delegated to EPA the right to regulate greenhouse gases for stationary sources “given the absurd result of regulating so many small sources.” This argument is a loser. If (as Texas argues in its first argument) the CAA text has to be followed explicitly, then it has to be followed explicitly, whatever the consequences. You can’t look for the Supreme Court to imply Congressional intent when the statute is unambiguous in a different direction.

3) Over-ruling Mass v. EPA. This is definitely a non-starter and just might make the Supreme Court mad. The swing vote is still Kennedy who wrote the majority in Mass v. EPA, and asking him to over-rule his own ruling in such a short time will not work. In fact, I am a bit shocked by this claim for cert. since it might actively push the justices against the state petitioners.

It only takes 4 justices to grant cert., and presumably that would be the conservative justices (the dissenters in Mass v. EPA), but they wouldn’t do that unless they thought they would get a win.