This story has been updated.
The U.S. Supreme Court is scheduled to hear a case later this month that will examine how the EPA regulates greenhouse gases. Legal experts say the case, West Virginia v. EPA, could mean more than just reducing the authority of the EPA in the fight against climate change. It could hold back other federal agencies.
“I think it’s scary,” said Cara Horowitz, co-executive director of the Emmett Institute on Climate Change and the Environment at UCLA Law School.
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The case dates back to two administrations
Like many people, Horowitz was surprised last fall when the Supreme Court agreed to hear the case. “Because in many ways the case is a dead letter,” she said. “It’s not entirely clear what exactly the court is looking at.” (Horowitz co-wrote a amicus brief to the Court on behalf of the electricity network experts.)
The case stems from rules created by the Environmental Protection Agency during the Obama administration, known as the Clean Energy Planwhich attempted to shift the electricity sector from coal-fired power plants to cleaner energy sources, such as wind and solar power.
The clean energy plan was challenged in court and the Supreme Court issued a stay pending the lower court’s decision. The CPP never came into force.
He was replaced by the Trump administration with the Affordable Clean Energy Rule (ACE), which did not regulate where power plants got their energy; it only aimed to reduce emissions at the factory level.
“What some call an ‘inside the fence’ approach,” Horowitz explained, “where the EPA can only look at each individual coal plant and have it take action to be more efficient, and that is all.”
The ACE Rule has also been challenged in court and, in January 2021, the DC Circuit Court of Appeals decided in this case. “The DC circuit said, ‘No, you’re not interpreting and applying the clean air law correctly. Your regulations are way too weak,” Horowitz said.
The appeals court decision went further, according to Jonathan Adler, Director of the Coleman P. Burke Center for environmental law, at Case Western Reserve University.
“That the agency had an obligation to pass regulations governing greenhouse gas emissions from power plants, and that this had to be the type of expansive regulations that the Obama administration enacted,” Adler said.
Why is SCOTUS hearing the case now?
After removing the ACE rule, West Virginia, Ohio and other states have asked the Supreme Court to review the issue. While Pennsylvania joined dozens of cities and states in opposition, arguing there were no rules in place for the Court to consider.
He sided with West Virginia.
“What makes it strange is that the rule that the DC circuit had weighed in on no longer exists,” Horowitz said.
The Biden administration has yet to introduce its own rule.
“I think it’s not a bad bet to assume that the judges…decided to take the case because they want to make a statement about the authority of the EPA.”
Wider Implications for EPA and Other Agencies
The Supreme Court usually finds reasons not to hear cases, which is why Horowitz and many other experts are concerned about the court’s intentions.
“I think it’s not a bad bet to assume that the judges have reached out and decided to take the case because they want to make a statement about the authority of the EPA,” he said. she declared. “And given the make-up of this tribunal, one has to assume that this statement about the authority of the EPA is going to bind the agency.”
Jonathan Adler is less sure the court will look deeper into the EPA’s authority, but if it does, the Major Issues Doctrine could come into play.
“The idea of the major issues doctrine is basically that Congress not delegate broad regulatory authority to agencies without saying so,” he explained.
When Congress creates sweeping legislation, in this case the Clean Air Act, it delegates broad authority to agencies to fill in the details, but under the major issues doctrine, when agencies move in new directions, such as moving to cleaner energy, courts should not assume that Congress has given agencies this authority,
“And so when you have a law like (the Clean Air Act) that was last amended over thirty years ago, where Congress was thinking about the kinds of control measures that were applied to traditional pollutants, it would be unusual to interpret this provision as containing the latent power to reorganize the entire energy sector of the economy,” Adler explained.
It would take an act of Congress to give the EPA that power, he said. Horowitz isn’t holding his breath over it.
“In this hyper-polarized political environment, it’s not like Congress is going to step in and say, “Oh, so we’re going to give the EPA more authority,” she said.
Horowitz and others fear the case has implications for other federal agencies.
“You can take that same reasoning by cutting and pasting it into a range of different laws that give one agency authority over everything from immigration decisions to health care decisions to environment, public safety, worker safety and using that same reasoning to restrict agency authority in all of these areas and others,” she said.
A decision in this case is expected in June.