Coal interests and the Environmental Protection Agency just faced off before the Supreme Court in a case that could drastically choke off the agency’s ability to regulate greenhouse gas emissions from power plants.
West Virginia led petitioners to have the court put locks on the administrative state, which court-watchers of all persuasions agree that conservative justices want to achieve. But some are doubting after Feb. 28’s oral arguments that the case is a guaranteed win for the judicially conservative view, even on a court with six justices nominated by Republicans, in large part because of the tricky procedural circumstances of the case.
Underpinning West Virginia v. EPA is a petition by a mix of coal-producing states and coal companies asking the high court to establish whether the Clean Air Act gives the agency broad authority to restrict power plant emissions, including by employing “outside the fence” regulations, or those reaching beyond an individual, existing stationary source, as the Obama-era Clean Power Plan attempted to do.
Even though a Supreme Court stay prevented the Clean Power Plan from going into effect, the defunct rule is still at the heart of the case. Petitioners appealed a ruling from the Court of Appeals for the District of Columbia Circuit handed down in January 2021, which vacated the Trump EPA’s Affordable Clean Energy rule — a rule that had repealed the Clean Power Plan and interpreted the Clean Air Act to exclude outside-the-fence regulations.
The D.C. Circuit concluded that the Trump administration’s ACE rule rested “squarely on the erroneous legal premise that the statutory text expressly foreclosed consideration of measures other than those that apply at and to the individual [emissions] source.”
Because of that, there’s no rule in effect regulating power plant emissions. U.S. Solicitor General Elizabeth Prelogar argued the case is not justiciable or eligible on procedural grounds to be ruled upon, for that reason and because the Biden EPA has not sought to reinstate the Clean Power Plan.
Prelogar also argued the court should stay its hand and allow the Biden administration to craft its own rule under the Clean Air Act, which she said is expected this calendar year.
“Petitioners aren’t harmed by the status quo and can’t establish [injury],” Prelogar argued in her opening statement. “What they seek from this court is a decision to constrain EPA’s authority in the upcoming rule-making. That is the very definition of an advisory opinion, which the court should decline to issue.”
The unique procedural questions lead Nathan Richardson, associate professor of law at the University of South Carolina, to consider it possible that the court tosses the case because petitioners lack standing or it’s a moot case.
“The procedural posture is super weird here with two different rules and one trying to repeal the other, and a D.C. Circuit holding that’s not the clearest on what it’s trying to do,” Richardson told the Washington Examiner.
“If you’re an institutionalist, if you’re Chief Justice [John] Roberts or maybe Amy Coney Barrett and you say, ‘You know, we kind of stuck our necks out on this one. Only four of us it seems really wanted to grant this case. Let’s kick it down the road,’ … That’s still my best bet,” Richardson added.
However, he qualified: “The standard line, of course, is that it’s hard to predict anything from oral arguments. I think that’s extra true here, more than normal because they really spread the oral argument over three different major categories of stuff.”
The other categories involved interpretations of specific text of the Clean Air Act and the “major questions” doctrine, which generally maintains that matters of major economic, social, or political policy should be left to Congress rather than executive agencies.
West Virginia Solicitor General Lindsay See brought major questions up immediately, as did Justice Clarence Thomas in response.
“Electricity generation is a pervasive and essential aspect of modern life and squarely within the state’s traditional zone. Yet EPA can now regulate in ways that cost billions of dollars, affect thousands of businesses, and are designed to address an issue with worldwide effect,” See said during her opening statement. “This is major policymaking power under any definition.”
Still, considering the range of concerns at play and the justices’ questions, Richardson suggested there’s reason to believe the court could hold off on a defining ruling until a more straightforward challenge with fewer procedural quirks arises — say after the Biden administration finalizes its rule.
“You have five, probably six votes on the Supreme Court to curtail EPA authority,” Richardson said. “If I’m EPA general counsel, I am not at all optimistic that come, you know, the end of the Biden administration, whether it’s three years from now or seven years from now, I’ve got the power under the Clean Air Act to have done a really powerful rule that affects power plants. The writing’s on the wall with that.”
“Whether that power gets constrained in this case, I think is much less certain.”
