Milbank: Justices appear skeptical in battle over EPA carbon rules

By Dana Milbank, Columbian Syndicated Columnist

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photoDana Milbank is a columnist for The Washington Post Writers Group. Email: danamilbank@washpost.com.

WASHINGTON — It has the makings of a royal mess for "King Barack."

Monday morning's Supreme Court argument about the Environmental Protection Agency's authority to regulate greenhouse gases went badly for the Obama administration — so much so that the real question before the justices seemed to be how severe the EPA's loss would be.

The administration's solicitor general, Donald Verrilli, pleaded with the justices to recognize the "urgent problem" of climate change, because the "threat to future generations gets worse" with each passing year. But as the argument played out, the court's swing justice, Anthony Kennedy, made clear that he agreed with the conservatives that the administration had gone too far in its carbon-dioxide regulations. Even some of the liberal justices voiced skepticism about the Justice Department's position.

"I know litigants hate this question," Justice Sonia Sotomayor told Verrilli. She asked which of two rationales he would prefer "if you were going to lose."

"I knew you were going to ask me that question," the solicitor general replied.

The eventual ruling may not be too awful for CO2 regulation in a practical sense. The justices didn't seem inclined to overturn a 2007 decision, Massachusetts v. EPA, granting the agency the authority to regulate greenhouse gases. Both sides agreed that they were really arguing over whether 83 percent or 86 percent of emissions could be regulated.

Yet the politics are more significant. If the court declares some of the agency's actions unconstitutional, it would inevitably renew the howls from the right about imperial presidency, dictatorship and monarchy. And it would highlight the inherent flaw in President Obama's "pen and phone" strategy of unilateral action by the executive. For all the complaints of abuse of power, this or any other president can go only so far without congressional approval.

Peter Keisler, the industry lawyer arguing against the regulations, said the administration had essentially tried to "design its own climate change program." Justices Samuel Alito and, particularly, Antonin Scalia seemed to believe that the whole business of regulating carbon dioxide was out of bounds, and perhaps unnecessary. "Where have the sea levels risen other than Massachusetts?" demanded Scalia, an apparent reference to the 2007 case in which he dissented. But Kennedy and Chief Justice John Roberts weren't in the mood to revisit the 2007 precedent.

Looking for precedent

Even if the conservative bloc wasn't going to succeed in freeing industry from carbon regulation, it was clear that at least part of the EPA's regulations were in trouble. "Reading your brief," Kennedy told the administration's lawyer, "I couldn't find a single precedent that strongly supports your position. … What are the cases you want me to cite if I write the opinion to sustain your position?"

"I think Morton v. Ruiz comes the closest," Verrilli replied.

"But that's not cited in your brief, is it?" Roberts asked.

Verrilli conceded the point.

The liberal justices were not eager to help him out of his jam.

Elena Kagan, an Obama appointee, said the EPA's solution "seems to give it complete discretion to do whatever it wants, whenever it wants" -- which she found "problematic."

The prolific Justice Stephen Breyer had by then asked a question of whether he would need a carbon permit when "all of my relatives are together."

The solicitor general assured him that "human beings are actually net neutral on carbon emissions," so "it doesn't matter how many family members you have." Breyer was delighted. "I'm not a net emitter of carbon dioxide," he declared. "That means I'm a part of sustainable development."

As if to test this theory, Breyer expended more carbon dioxide by comparing the EPA regulations to a "statute that requires animals to pay 50 cents on the train (but) does not apply to snakes." Or maybe he said "snails."

Either way, it was clear that this court would not be of service to the "king."