Supreme Court’s EPA Ruling Could Put Other Regs in Danger

July 01, 2022

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by Rachel Frazen (The Hill) The Supreme Court’s Thursday decision curtailing Environmental Protection Agency (EPA) authority could hamper regulations far beyond climate.

The conservative majority in the 6-3 ruling found that an Obama-era power plant rule was not permissible since it didn’t have “clear congressional authorization.”

But legal experts say this principle could be applied elsewhere, restricting the Biden administration from imposing other regulations in areas including health and consumer protections.

“If people think the federal government should be there to ensure that Americans have a basic level of health, safety and environmental protection, they should be very worried about these decisions,” said University of Michigan law professor Nina Mendelson.

The high court’s ruling invoked a legal philosophy called the “major questions doctrine,” which posits that regulations of substantial national significance need to have clear authorization from Congress.

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Experts said that the case could both impact litigation for existing regulations and have a chilling effect on how agencies approach rulemaking going forward. READ MORE; includes VIDEO

Supreme Court handcuffs Biden’s climate change efforts (Politico Pro)

How Biden can still meet his climate goals -- It wouldn't be easy, but Democrats could still look to Congress, other kinds of regulations or the states in their effort to cut greenhouse gases. (Politico Pro)

Opinion The EPA decision is the biggest one of all, and the court got it right (Washington Post)

Supreme Court curbs EPA’s climate powers (The Hill)

Supreme Court rejects EPA ability to set fleet-wide GHG emissions standards for power plants (Utlity Dive)

Supreme Court limits EPA’s power to combat climate change (Washington Post)

The Supreme Court’s EPA Ruling: A Loss of Authority for Federal Agencies or a Lesson for Conservatives in ‘Be Careful What You Wish For’? The decision in West Virginia v. EPA could result in more expensive and restrictive carbon regulation—or the erosion of agencies’ ability to address society’s most pressing needs. (Inside Climate News)

‘Major Questions’ Ruling Opens Door To Scores Of EPA Rule Challenges (Inside EPA)

What’s on and off the table for post-SCOTUS climate action (E&E News)

Is Biden’s 2035 CO2 goal still achievable? What studies say (E&E News)

What the Supreme Court ruled the EPA can and can’t do (The Hill)

Court hobbles EPA on climate, and its options are limited: Other pathways to limiting climate change may be available, but they're tricky (Roll Call)

EPA retains tools to cut power sector GHG emissions despite Supreme Court curbing its authority: attorneys -- However, the court’s use of the ‘major questions doctrine’ signals likely challenges to future regulations, according to lawyers. (Utility Dive)

Supreme Court Wounded, but Didn’t Kill, Biden Climate Powers: The administration still has plenty of tools to limit climate pollution that the ruling in West Virginia v. EPA did not touch. (The American Prospect)

As Federal Climate-Fighting Tools Are Taken Away, Cities and States Step Up -- Across the country, local governments are accelerating their efforts to cut greenhouse gas emissions, in some cases bridging partisan divides. Their role will become increasingly important. (New York Times)

3 climate rules threatened by the Supreme Court decision: The court's use of the "major questions" doctrine is likely to spur challenges to climate and energy regulations. (Politico Pro/E&E News)

US court ruling may leave door open to CO2 trading (Argus Media)

Supreme Court Leaves States and Cities to Combat Climate Change (World War Zero; includes VIDEOS)

The silver lining for EPA in Supreme Court climate ruling (E&E News)

Opportunities For Climate Action After SCOTUS's EPA Ruling (World War Zero; includes VIDEOs)

Up next: West Virginia AG targets SEC climate proposal (E&E News)

'We don’t have to pretend anymore': Greens ready to bail on D.C. -- Environmentalists and many of their Democratic allies are preparing to focus on state capitals as the places to press for action on climate change — going back to a strategy they employed during the Trump era. (Politico)

Climate lawsuits proliferate, confronting corporate polluters (Politico Pro)

Time for Biden's 'Beast Mode'? (Politico's Power Switch)

This climate approach could win John Roberts’ approval (E&E News/Climatewire)

How the Supreme Court 'shadow docket' shaped climate doctrine -- Chief Justice John Roberts' approach to the "major questions" doctrine in West Virginia v. EPA signals the Supreme Court’s new willingness to treat expedited orders as precedent. (Politico Pro)

What's next after the Supreme Court's climate ruling? (E&E News Webinar)

Excerpt from The Hill: At issue in the case was language in the Clean Air Act that enables EPA to regulate power plants using a “best system of emissions reduction” and what specifically that system can entail.

The majority opinion, penned by Chief Justice John Roberts, determined that the Obama administration’s use of a system that involved moving away from carbon-intensive coal plants and toward natural gas and renewables did not qualify.

Roberts wrote that the plan, which involved regulating the power system as a whole instead of regulating individual plants, was an “unprecedented” view of the EPA’s authority that involved a “fundamental revision of the statute, changing it from [one sort of] scheme of . . . regulation” into an entirely different kind.

In Thursday’s ruling, the court took a regulatory tool off the table for the Biden administration, which is currently working on its own power plant regulations.

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Justice Elena Kagan, writing a dissent for the three liberal justices on Thursday, said the majority was constraining the federal government’s ability to address carbon emissions during a time of crisis.

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“The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.” READ MORE

Excerpt from Utility Dive: In its decision, the Supreme Court said the EPA lacks the authority to regulate power plants across fleets instead of on a plant-by-plant basis.

Under a fleet-wide regulatory approach, “EPA can demand much greater reductions in emissions based on a very different kind of policy judgment: that it would be ‘best’ if coal made up a much smaller share of national electricity generation,” the court said. “And on this view of EPA’s authority, it could go further, perhaps forcing coal plants to ‘shift’ away virtually all of their generation — i.e., to cease making power altogether.”

It’s “highly unlikely” Congress gave the EPA the discretion to decide how much coal-based generation there should be over the coming decades, the court said.

Supreme Court Associate Justice Elena Kagan wrote a dissenting opinion that was joined by associate justices Stephen Breyer and Sonia Sotomayor.

The court’s decision “strips” the EPA’s ability to respond to climate change, according to Kagan.

“The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms,” Kagan said. “But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise.” READ MORE

Excerpt from Inside Climate News: The court did not reverse—or even revisit—its 2007 decision that EPA has the authority to regulate greenhouse gases as pollutants under the Clean Air Act. In fact, West Virginia’s attorney general made clear from the start he was not seeking to overturn the landmark decision, known as Massachusetts v. EPA. Technically, the court’s ruling in the West Virginia case reversed a lower court’s ruling striking down the weak power plant regulations put into place by the Trump administration, rules that would have cut carbon emissions less than 1 percent.

But the court’s decision clearly has limited what EPA can do under the Clean Air Act without further, explicit instruction from Congress—the kind of lawmaking on climate change that Congress has shown itself to be incapable of over three decades. Nevertheless, advocates of climate action and the Biden administration’s EPA maintain that despite the high court’s decision, the agency has both a duty, as well as some legal power, to act in the ways it can on carbon pollution from power plants and other sectors of the economy.

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Roberts stopped short of the sweeping language many environmentalists feared, for example, by saying EPA had no power to act on climate change; instead, he focused on limiting EPA’s authority under one section of the Clean Air Act. READ MORE

Excerpt from Inside EPA: The Supreme Court’s June 30 decision that EPA is barred from mandating electricity generation shifting from dirtier energy sources to cleaner ones under the so-called “major questions” doctrine opens the door to countless other rule challenges and potential court rulings based on the same theory, attorneys are warning. They cite as examples EPA’s vehicle greenhouse gas rule, EPA’s waiver of preemption allowing California to set stricter vehicle rules, the administration’s pending rules governing the reach of the Clean Water Act,... READ MORE

Excerpt from E&E News: Here’s three areas to watch that could influence the emissions trajectory of the power sector:

Revamp of EPA rules

EPA had projected at the start of the year it would release a proposal for replacing the 2019 Affordable Clean Energy rule, but the agency’s timeline has now shifted to next March, according to the Biden administration’s unified agenda (Climatewire, June 22).

The court’s ruling “takes a particular approach, and possibly the best approach, off the table,” Michael Burger, executive director of Columbia University’s Sabin School for Climate Change Law, said of the court decision.

Still, EPA could apply technological fixes that are better than the types of efficiency improvements favored under the Trump-era Affordable Clean Energy rule, said David Doniger, senior strategic director of the Natural Resources Defense Council’s climate and clean energy program.

Those could include using carbon capture and storage technology, an approach that had been barred under the 2019 rule. Carbon capture traps CO2 from point-sources like power plants before emissions can enter the atmosphere.

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Tightening existing EPA rules is the most likely path for the agency, said Kevin Cromar, program director at the Marron Institute of Urban Management at New York University.

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CCS and hydrogen

EPA could also offer blending fuels like natural gas or even hydrogen as a form of compliance for coal-fired power plants, said Doniger during a press call last week.

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Lesley Jantarasami, managing director of the Bipartisan Policy Center’s energy program, said EPA will have to think about technology options like the “implementation of CCS at an individual facility in order to meet whatever they decide is the appropriate standard of emissions.”

Carbon removal, where CO2 emissions are captured from the air, is another form of technology deployment that could be used at an individual facility, added Jantarasami, who has previously worked at the Oregon Department of Energy and EPA.

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A draft white paper released by EPA in May said the Petra Nova plant in Texas and the Boundary Dam plant in Canada are “projects that have demonstrated the separation and capture, transport, and geologic storage components of post-combustion carbon capture” (Energywire, May 9).

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States, cities become ‘ground zero’

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In the wake of the ruling, some states are now doubling down on emissions controls within their borders.

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A day before the Supreme Court’s ruling, however, two clean energy advocacy groups underscored what they described as mixed levels of state and city progress on climate policies.

In a blog post, the American Council for an Energy-Efficient Economy (ACEEE) pointed to its examination last year of climate policies in 38 large U.S. cities.

Only about 20 of those were on track to cut greenhouse gas emissions “in line with global benchmarks” by 2050, wrote Alexander Jarrah, a research analyst on local policy for ACEEE.

Another group, RMI, published a climate scorecard on June 30 that graded six states — California, Colorado, Illinois, New Jersey, New York and Washington — on progress toward a 50 percent cut in greenhouse gas emissions by 2030. That mirrors the national target set out by the Biden administration as an interim step toward net-zero emissions by 2050.

The scorecard found that none of those states are currently on track, despite a flurry of efforts to introduce new policies. READ MORE

Excerpt from The Hill: However, the safest way to shore up EPA authority would be “legislation, appropriate, adequate, serious legislation,” Herz (Cardozo School of Law professor Michael Herz) told The Hill.

“And failing that. EPA is going to do what it’s been doing, at least with Democratic presidents,” that is, attempt to implement the specific statutory provisions of the Clean Air Act, which “are not necessarily ideally suited” to lowering carbon emissions.

Adler (Dena Adler, a research scholar at New York University’s Institute for Policy Integrity) was more sanguine, telling The Hill that “while certain techniques still on the table may be less economically efficient than the Clean Power Plan, it is worth remembering that industry has repeatedly overestimated the costs of Clean Air Act compliance throughout history.”

In the meantime, she said, state and local governments can potentially pick up some of the slack through transportation, zoning and building code policies. READ MORE

Excerpt from Argus Media: The high court ruling does not foreclose the ability of EPA to use a cap-and-trade system or requirements for the use of technology such as carbon capture, according to lawyers who spoke today during a virtual forum hosted by the Georgetown Climate Center.

"If anything, it gives them more flexibility than I think they thought they had," said Jeff Holmstead, head of the environmental practice at law firm Bracewell, who led EPA's Office of Air and Radiation during the administration of former president George W Bush. "They spoke approvingly of trading. They talked about the flexibility that states have in meeting any section 111(d) guidelines or limitations," referring to the part of the Clean Air Act used to issue the Clean Power Plan.

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Another option for EPA could be to rely more heavily on other well-established regulations, such as standards for criteria air pollutants, that may have a co-benefit of reducing emissions.

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Regardless of what path EPA choose, it will have to make sure it thoroughly explains its rationale for the regulations, or the agency could wind up losing again as the Supreme Court has given federal agencies less leeway in recent years. READ MORE

Excerpt from E&E News: EPA is now likely to ask the D.C. Circuit to remand the rule to it for a rewrite, which is due to be proposed early next year. The high court’s decision leaves EPA substantial latitude to regulate carbon through the power sector — just not through generation shifting.

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When petitioners filed their request for certiorari to the Supreme Court last year, they also asserted that the Clean Air Act’s language “makes it plain” that states, and not EPA, should set emissions standards for existing sources regulated under Section 111(d) of the law.

The provision gives EPA the job of setting “guidelines” for states, which then formulate their own implementation plans that are submitted for EPA’s approval. Attorneys general from some states — led by North Dakota — argued that the provision gives states, and not the federal agency, the authority to determine how much emissions reductions their sources must deliver. That reading would have undercut EPA’s ability to set a national standard.

“There has been this argument all along that 111 is just procedural, it’s just kind of a box-checking exercise for EPA, and that it’s really the states that are the ones who are coming up with the emission limits,” said Jay Duffy, an attorney with the Clean Air Task Force who represented environmental respondents in the West Virginia case.

But the decision penned by Chief Justice John Roberts released last week affirms that the “the agency, not the states, decides the amount of pollution reduction that must ultimately be achieved.”

Duffy said that confirms EPA’s authority to set “actual, numerical, substantive emission limits” for existing sources regulated under the Clean Air Act provision.

“So that’s an important win as well,” he said.

The Roberts majority opinion found that the Clean Power Plan’s “systemwide” approach to power sector decarbonization is out of bounds. That approach encouraged trading that fossil fuel advocates characterized as a requirement that fossil-fuel-based utilities subsidize their greener competition. READ MORE

Excerpt from Politico's Power Switch: Climate emergency declaration
Presidents have declared national emergencies more than 100 times in the past 50 years— usually for foreign crises. But former President Donald Trump set a new precedent in 2019 when he used the lever to circumvent Congress and funnel billions of dollars into his border wall with Mexico.

Now, climate advocates want Biden to follow suit and declare a national climate emergency. While not a silver bullet, the move would unlock billions of dollars annually to fund a clean energy revolution and protect the most vulnerable from the impacts of climate change.

"This is kind of a put up or shut up moment for Biden," said Collin Rees, the U.S. program manager at Oil Change International.

Still, the president would need the Supreme Court to uphold a declaration. That might be a risky bet after the conservative high court hobbled the administration's ability to clean up the power sector last month — even if the same court allowed Trump's emergency gambit to proceed.

Plus, Biden's recent calls to increase domestic oil production as a response to Russia's invasion of Ukraine has not exactly inspired confidence from climate advocates.

"Biden is about to do what every president before him has done on climate: nothing," Will Cleveland, a senior attorney at the Southern Environmental Law Center, said in a tweet. "It's up to states for the foreseeable future." READ MORE

Excerpt from E&E News/Climtewire: Roberts (Supreme Court Chief Justice John Roberts) wrote that “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’”

That line helps environmentalists’ case for using a different part of the Clean Air Act to set national limits for greenhouse gases, said Maya Golden-Krasner, climate deputy director for the Center for Biological Diversity.

The Supreme Court’s 6-3 opinion in the West Virginia case found that EPA didn’t have the authority to write the Obama administration’s signature climate rule, the Clean Power Plan. Roberts wrote for the majority that “it is not plausible” that Congress gave EPA the authority to adopt “such a regulatory scheme” using Section 111(d) of the Clean Air Act. He was joined by the court’s five other conservative justices.

“Basically, Justice Roberts said, ‘We’re not going to allow you, EPA, to do this major generation-shifting regulation under this one ancillary section of the Clean Air Act,” Golden-Krasner said.

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“But it might make sense to do it under other sections,’” like the National Ambient Air Quality Standards.

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CBD and 350.org asked EPA to set a national limit on atmospheric greenhouse gas concentrations using a section of the Clean Air Act that’s used to clamp down on air pollutants such as carbon monoxide, lead and ozone.

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Opponents of the move — including officials who worked in the Obama and Trump administrations — contend that greenhouse gas emissions don’t fit within this particular section of the Clean Air Act, which forces states to crack down on emissions.

Because greenhouse gases are global pollutants, state plans couldn’t have “any measurable effect” on concentrations within the state’s borders, Trump EPA Administrator Andrew Wheeler wrote on Jan. 19, 2021, as he rejected the petition the day before leaving office (Greenwire, March 3).

Biden’s team promised to reconsider. In a March 2021 letter, Biden’s acting EPA Administrator Jane Nishida told the Center for Biological Diversity that she was undoing the Trump denial and that EPA would take another look. The “agency did not fully and fairly assess the issues raised by the petition,” she wrote.

And this summer, a series of developments in the climate policy world has renewed advocates’ hope that the Biden EPA might consider setting national caps on greenhouse gases. The Supreme Court knocked down another EPA approach to climate, but may have left the door open to the path CBD is pushing for.

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The standards assume that ambient concentrations of criteria pollutants “impose particularized and measurable health and other impacts in defined areas,” Segal (Scott Segal, co-chair of government relations at the law firm Bracewell LLP) said, pointing to high concentrations of particulate matter and ozone in the Los Angeles Basin that cause smog.

“By contrast, a molecule of carbon dioxide is around the world in seven days,” Segal said. “It does not concentrate in the fashion covered by the NAAQS program, so applying NAAQS to greenhouse gases would be a major expansion of the program without specific authorization.”

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There is a risk that the entire country could be in nonattainment, “with no hope of attainment until the entire world reduced to that level,” he said, adding, “That’s not really the way the NAAQS program works — it essentially focuses on limited areas of high concentrations, and works to reduce targeted emission sources.”

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Declaring a climate emergency could help EPA make the argument that it needs to set a cap on greenhouse gases, said Bill Snape, a law professor at American University and senior counsel at CBD.

“If Biden does declare a climate emergency and the administrator of EPA decides to do a rulemaking on making climate pollutants criteria pollutants, then I think the administration strengthens that administrative move,” Snape said. READ MORE