Supreme Court arguments have big climate change stakes

Decision could broadly affect other rulemaking agencies and their relationship with Congress

The case was brought by states that argue the EPA overstepped its bounds in regulating carbon emissions by power plants.  (Getty Images)
The case was brought by states that argue the EPA overstepped its bounds in regulating carbon emissions by power plants. (Getty Images)
Posted February 28, 2022 at 6:00am

The Supreme Court will hear oral arguments Monday in a case with sweeping implications for President Joe Biden’s plans to reduce domestic greenhouse gas emissions and rally the rest of the world in tackling climate change.

Although Monday’s case, West Virginia v. Environmental Protection Agency, revolves around the EPA’s ability to regulate utilities' carbon emissions, a ruling from the high court could broadly affect other rule-making agencies and their relationship with Congress.

If the court takes a narrow approach and rules only on the question of EPA’s authority to control emissions, that still could interfere with Biden’s climate agenda.

“This is an, in effect, preemptive attack on what the U.S. EPA might be doing in the future,” said Howard Learner, president and executive director of the Environmental and Law Policy Center. “The American public recognizes that climate change is causing extreme weather events.”

West Virginia Attorney General Patrick Morrisey, a Republican, said at a recent event at the National Press Club that his side is focused on the principles of congressional authority.

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“Notably, we've never said that the EPA lacks any authority to address climate change,” Morrisey said. “It’s just, we have a much different definition in terms of what's permissible under the Clean Air Act and the major questions doctrine as opposed to some of my colleagues on the other side.”

Biden has set a goal of transforming the U.S. power sector to be carbon-free by 2035 and zeroing out emissions economywide by 2050.

Meeting those targets likely will require significant new regulations, especially with Biden’s climate and social spending bill, dubbed “Build Back Better,” indefinitely stalled in the Senate.

Even if some version of that legislation passes, Democrats already have abandoned more aggressive proposals, such as the Clean Electricity Performance Program, which would have provided incentives and penalties for the power sector to transition from fossil fuels to renewables.

Regulatory muscles

That means it’s up to the EPA and other agencies to pursue emissions reductions through existing law and regulations. But a court ruling that requires Congress to explicitly direct EPA to address greenhouse gas emissions could weaken the agency’s regulatory muscles to curb carbon pollution.

EPA Administrator Michael Regan, asked recently about the potential fallout from an adverse decision, said the agency is watching the case closely. But he noted that it also plans to continue with the “bread and butter” regulations affecting coal-fired power plants. He cited rules around regional haze, mercury pollution and coal ash contamination.

Regan said the EPA will “do its job” and is assembling a “suite” of regulations to provide the power industry with certainty about the cost of continuing to use coal-generated electricity.

Decisions about shuttering power plants will then be up to the industry, he said.

“When you look at the bread-and-butter regulations that are true to the Clean Air Act, which we're obligated to execute on, plus what the Supreme Court is going to do, we see a future of tremendous economic pressure on this industry,” Regan said.

David Doniger, senior strategic director of the Natural Resources Defense Council’s Climate & Clean Energy Program, said Regan was making a straightforward observation about the agency’s duty to protect the public and companies’ interest in knowing what their obligations will be. And sometimes those obligations will lead to business decisions to abandon coal-fired power plants.

The petitioners argue the EPA’s systemic approach under the Obama-era Clean Power Plan, which set specific goals for utility emissions, went too far and that it must pursue a narrower tack.

Doniger said a significant question the court must resolve is whether the plaintiffs even have standing to bring the case.

The Supreme Court in 2016 stayed the Clean Power Plan. While the Trump administration wrote a weaker rule to replace the Clean Power Plan, a federal court in Washington, D.C., vacated that rule in January 2021, finding that the EPA “fundamentally” misread the law in writing that rule.

No rule to oppose

That means the case slated for Monday stems from a rule that no longer exists and was written to supplant a rule that is also gone.

The Biden administration is crafting its own version of power sector regulations, but that is still a work in progress. So it’s possible the court will dismiss the challenge as premature.

Even if the court rules for the petitioners in some form, Doniger suggested it won’t make a sweeping decision that all regulations are unconstitutional or bar the EPA from regulating carbon emissions altogether.

“They clearly can regulate power plants. They’ve been doing that for 50 years. They clearly can regulate carbon from power plants,” Doniger said. “The question then comes down to whether the way they regulate them is outside EPA’s lane.”

Doniger said the court could find a middle ground between the Clean Power Plan and the Trump rule. For example, it could say that the EPA should not have included renewable energy as a recipient of credits under the Clean Power Plan because those operations aren’t emitting carbon pollution.

“That would still leave the space … for a standard that included averaging or trading among plants that are emitters, which would be more traditional,” Doniger said.

The court will hear the case following a year that the National Oceanic and Atmospheric Administration said was the sixth-warmest recorded in Earth’s history, and on the day the Intergovernmental Panel on Climate Change, the leading global body of climate scientists, is expected to release a report detailing the devastation of human-fueled climate change.

Learner said he was surprised the court agreed to hear the case — a sentiment he said permeated the broader environmental legal community. 

The docket is jammed with briefs from academics, legal writers and right- and left-wing advocates, as well as submissions of Republican and Democratic officials, medical doctors, watchdog organizations and climate scientists.

Ninety-one Republican members of Congress wrote in support of the GOP state attorneys general, and 192 congressional Democrats backed the EPA in a separate brief.

Sens. Sheldon Whitehouse, D-R.I., Richard Blumenthal, D-Conn., Bernie Sanders, I-Vt., and Elizabeth Warren, D-Mass., filed their own brief in support of the EPA.

“These cases present a legal oddity: petitioners are challenging a regulation that does not exist,” it reads.

While Learner said a ruling with multiple opinions would not come as a surprise, he’s concerned the court could overturn the landmark environmental ruling in the 2007 case Massachusetts v. EPA, in which the court held the agency had the authority to regulate greenhouse gases under the Clean Air Act.

Four justices have to agree to hear a case. “There’s a legitimate fear that they have a fifth vote,” Learner said.

“They’re the Supreme Court,” he said. “They can do what five justices decide to do.”