Supreme Court debates government power to regulate greenhouse gases

Justices could shape the EPA’s reach at a time when the Biden administration is crafting its own power sector regulations

Sunset light illuminates the U.S. Supreme Court building in December.  (Bill Clark/CQ Roll Call)
Sunset light illuminates the U.S. Supreme Court building in December. (Bill Clark/CQ Roll Call)
Posted February 28, 2022 at 3:09pm

The Supreme Court appeared ready Monday to decide the limits of the EPA's authority to regulate greenhouse gases at power plants, but gave no clear signals about where or how it might draw such a line.

In two hours of wide-ranging oral arguments, the justices debated the wording of the Clean Air Act and how courts should decide about how much power Congress gave to the EPA when it comes to regulations of carbon emissions.

Questions from the justices in the conservative majority suggested a more skeptical view of EPA power. A decision in the four consolidated cases, expected by the end of the term at the end of June, could shape the EPA’s reach at a time when the Biden administration is crafting its own version of power sector regulations.

On Monday, though, the justices in part searched for a clear answer about what regulations now face utilities after years of court fights and changes in regulations that started with the Obama administration’s Clean Power Plan in 2015.

The Obama-era regulations never went into effect because of court challenges and ultimately a Supreme Court action in 2016. The Trump administration repealed those regulations and put in its own rule, dubbed Affordable Clean Energy.

The U.S. Court of Appeals for the District of Columbia Circuit vacated that ACE rule last year, when it rejected the Trump administration’s more narrow view of the EPA’s regulatory power under the law.

Now, West Virginia is among those pushing the Supreme Court to reverse the D.C. Circuit ruling, which sets up a situation where the justices could curtail EPA power based on regulations that are different from what the Biden administration will put out.

Justice Brett M. Kavanaugh asked at one point, “What happens if EPA issues a new rule before we decide this case?”

West Virginia Solicitor General Lindsay See told the justices that a new rule could make this challenge moot, but that the D.C. Circuit’s ruling gave the EPA new and transformative power and any new Biden administration rule could be based on that error.

“We’re a year after the D.C. Circuit’s decision, we still don’t even have a notice of proposed rulemaking to know what direction the agency might go in,” See said. “And the agency hasn't even given us any indication that a new rule might help us. If anything, statements from the administration suggests that the rule would only make our injuries worse.”

U.S. Solicitor General Elizabeth Prelogar told the justices that the EPA is still undertaking preparatory activities and expects to issue a notice of proposed rulemaking by the end of this year. “In the past, it’s taken about a year after that to issue a final rule,” Prelogar said.

And in an exchange with Justice Samuel A. Alito Jr., Prelogar called it “problematic” to discuss the way the EPA exercises its authority in an abstract way because there is no “currently applicable regulation.”

The EPA interpreted the D.C. Circuit ruling to mean that the Obama-era power plan would not go back into effect, and it couldn’t go back into effect in part because key deadlines have already passed.

See told the justices that Congress in the Clean Air Act told the EPA to partner with the states to regulate on a source specific level, which means identifying measures particular buildings can take to reduce their own emissions.

“The D.C. Circuit decision gave EPA much broader power, power to reshape the nation’s energy sector, or most any other industry for that matter, by choosing which sources should exist at all and setting standards to make it happen,” See said.

Prelogar contended that West Virginia and other states want the Supreme Court to issue a decision that will “constrain EPA authority and the upcoming rulemaking.”

And Prelogar argued that the Trump administration view of the EPA’s power that those states back “is unprecedented and would threaten to disrupt an industry that has long relied on measures like trading and averaging to reduce emissions in the most cost effective way.”