The Supreme Court will hear arguments for a suit seeking to limit the Environmental Protection Agency’s authority to regulate power plants’ greenhouse gas emissions. The decision could result in a significant and lasting scale-back of the agency’s ability to impose expansive standards on the sector and insulate states and utilities that rely heavily on coal.
On Oct. 29, the court said it would take the case from the D.C. Circuit Court of Appeals, consolidating four separate petitions led by West Virginia, North Dakota, Westmoreland Mining Holdings, and the North American Coal Corporation. The court will consider whether the Clean Air Act provided EPA the authority to consider the climate impact of the power sector’s carbon emissions and to enforce “outside the fence” emissions regulations, or those that apply to stationary sources at a regional or national level rather than an individual facility level.
In the preceding case, the D.C. Circuit ruled in January on a challenge to the Trump EPA’s Affordable Clean Energy rule, which had repealed the Obama-era Clean Power Plan emissions regime and asserted that it exceeded the Clean Air Act’s plain meaning in pursuing outside-the-fence regulations.
The court rejected the Trump EPA’s reading. It vacated the rule the day before President Joe Biden’s inauguration, finding that the Trump administration 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.” That opened up the door again for new expansive regulations on power sector emissions in the mold of the Clean Power Plan, or something even more aggressive.
West Virginia’s petition appealing the D.C. Circuit’s decision accuses the court of purporting “to find grounds for EPA to dictate huge shifts in most sectors of the economy even though nothing in the statute approaches the clear language Congress must use to assign such vast policymaking authority.”
Beyond the statutory question, petitioners also charged that the appellate court’s reading of the Clean Air Act placed “no limits” on the EPA’s emissions regulating authority. Aside from directives to consider costs, nonair health, environmental impacts, and energy requirements, petitioners argued that anything else violates the separation of powers. It functionally delegates legislative authority to the administrative agency.
Were the court to rule in agreement with the latter claim, it would set up “a couple of decades of uncertainty over what it is Congress can do,” according to Nathan Richardson, associate professor of law at the University of South Carolina, who expressed skepticism of petitioners’ arguments. “Almost all policy is set to some degree by the administrative state. That’s true under administrations of both parties and has been since the New Deal,” Richardson said in an interview, adding that such a ruling on “nondelegation” grounds would threaten “the ability of the government to get things done and solve problems.”
The court could also rule that the Clean Power Plan exceeded authority the Clean Air Act provides (the high court put the Clean Power Plan on pause in 2016 but never ruled on its merits) or rule in line with the “major questions” doctrine and decide that Congress needs to define the EPA’s emissions regulating authority under the Clean Air Act better, according to Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School.
“The basic idea is that if Congress is going to do something really big, they do it explicitly and loudly — not quietly,” Gerrard said.
These are among the possible outcomes in what a range of legal experts described as a “surprising” case for the court to take in the first place, considering it deals with the merits of the Trump-era Affordable Clean Energy rule and the Obama-era Clean Power Plan — neither of which the Biden administration has any stated interest in defending.
The Biden EPA has yet to put forward its own rule on regulating power sector emissions. In its filing in opposition to the petitions, the administration dissuaded the court from taking the case.
“It is a surprise that the court would essentially put EPA in the position of either defending a rule it doesn’t want to defend — the Trump rule — or I think more precisely defending nothing, in particular, just defending the scope of its authority without any attempt to actually use it yet,” Richardson said.
Jeff Holmstead, a lobbyist and former assistant administrator at EPA under George W. Bush, asserted the case would “almost certainly” delay the administration’s effort to move forward with a rule of its own.
“They’ll have to wait to see what the Supreme Court says about how and whether they can regulate carbon emissions from power plants under current law,” he said.
