West Virginia v. EPA Explained: Supreme Court Hears Greenhouse Gas Case



CNN

The Environmental Protection Agency faces a Supreme Court case on Monday that could deal a major blow to the federal government’s ability to tackle the climate crisis and prevent its worst consequences.

Republican attorneys general will say that the EPA does not have the authority to regulate global warming emissions from the electricity sector. Instead, they will say the authority should be given to Congress.

The case also has huge implications for Biden’s climate agenda. With legislative action on climate looking uncertain at best, a Supreme Court ruling siding with coal companies could undermine an important way the administration planned to cut emissions at a time when scientists are ringing the bell. alarm on the acceleration of global warming.

The electricity sector is the second largest emitter of greenhouse gases in the country. Electricity emissions increased last year, mainly thanks to coal.

Experts say West Virginia vs. EPA is a very unusual case, as there are currently no EPA rules on power plant emissions. The plaintiffs are asking the court to block the EPA from implementing the future rules.

“This all seems unprecedented,” Jody Freeman, a Harvard Law School professor and former Obama administration official, told CNN.

Here’s what you need to know about the case and its possible outcomes.

West Virginia Attorney General Patrick Morrisey is the lead plaintiff in the case, joined by Republican attorneys general from more than a dozen other states. Morrisey’s office also represents two coal companies: The North American Coal Corporation and Westmoreland Mining Holdings, LLC.

The plaintiffs challenge the EPA’s power to regulate greenhouse gas emissions from power plants and say that power should be taken away from the agency and given to Congress.

“I think it’s really a fundamental question of who decides the main issues of the day,” Morrisey said at a media event earlier this month. “Should it be unelected bureaucrats or representatives of the people in Congress? That’s what this case is about. »

American power plants have historically produced electricity by burning coal; however, the use of coal is declining as renewables and natural gas have expanded into the electricity sector.

West Virginia and several other claimant states are also coal states.

The United States Solicitor General represents the Biden administration and the EPA. Several environmental groups, Democratic lawmakers, power companies and their trade association have filed amicus briefs in support of the defendants.

The Biden administration says the case should be thrown out, largely because there are currently no federal regulations for power plants. The Obama-era Clean Energy Plan is long dead, as is the Trump-era Affordable Clean Energy Rule that replaced it.

President Joe Biden’s EPA has yet to issue its own rule to regulate greenhouse gas emissions from power plants and is expected to do so after oral arguments on Feb. 28.

“Normally, the courts look at the regulations in place, and there are no regulations to look at at the moment,” Ricky Revesz, a New York University law professor and an expert in law, told CNN. ‘environment. “Whatever the court does will involve speculation, and courts do not normally – they point out – give advisory opinions. That’s not what the courts do.

In an interesting twist, some power companies are siding with the EPA and will have the opportunity to argue their case directly during oral arguments.

The energy industry is very concerned about the implications of the repeal of the EPA’s regulatory authority. In its amicus brief, the powerful industry trade group, Edison Electric Institute, said stripping the EPA of its authority “would be chaos” for its companies and expose them to constant litigation.

“Instead of the EPA using its world of expert authority to craft regulations, our members would be thrown into a world of tort and nuisance lawsuits,” said Alex Bond, assistant general counsel for climate and environmental protection. clean energy at EEI, at CNN. “It’s a world of huge risks and uncertainties.”

Legal experts and environmental groups are watching to see if this argument from the electricity industry could strike a chord with the conservative justices.

“I think the court is attentive to cases,” Freeman said. “It is striking that the industry that needs to be regulated is not the petitioner.”

The things that are argued before the Supreme Court are quite broad.

Morrisey and other plaintiffs say the Clean Air Act does not explicitly say the EPA can regulate greenhouse gas emissions from power plants. But rather than asking for limits on the EPA’s authority, let’s urge the Supreme Court to invoke two legal theories that would, in effect, give Congress the power to make decisions about regulating emissions from power plants, instead agencies.

“These federal agencies don’t have the ability to act on their own without getting a clear statement from Congress,” Morrisey said at the media event. “If you have something major, you need to make sure Congress steps in and Congress can make those major decisions of the day.”

But legal experts say Congress has already used its broad delegation power with the Clean Air Act, which was reaffirmed by the Supreme Court itself. In two separate decisions – one of which was unanimous – the Supreme Court found that the EPA had the authority to regulate greenhouse gas emissions (Massachusetts v. EPA and American Electric Power Co. v. Connecticut).

Moreover, delegating this power to an already slow-moving branch of government could present an obvious logistical challenge.

“On the face of it, that seems like a reasonable thing to say: Congress should speak clearly,” Freeman said. “But historically, in practice, we’ve viewed ‘broad delegation’ as just that – broad delegation” to agencies to make decisions.

The conservative supermajority makes the outcome of this case difficult to predict, but there are a few possibilities.

Dismissal : In its brief, the United States Solicitor General’s office asks the Supreme Court to dismiss the case, saying Republican state attorneys general and coal companies lack standing because there is no EPA regulations currently in effect.

Administration lawyers are also proposing that the court could reverse and reverse the DC Circuit Court’s January 2021 decision that spurred the West Virginia challenge. Indeed, it could wipe the slate clean and allow Biden’s EPA to proceed with its own powerhouse rules.

An arrow decision: The court could issue a narrower ruling that allows the EPA to retain its regulatory authority, but says the agency can only make decisions that impact power companies “inside the fencing”. That would limit the EPA to tighter regulations that power plants could achieve within their own fences — like carbon capture — rather than pushing them to add cleaner energy sources.

The EPA’s worst-case scenario: The court could strike down Massachusetts v. EPA and give Congress the power to regulate greenhouse gas emissions from power plants.

Most of the action will take place on the court’s conservative bench.

Defendants, plaintiffs and outside experts say they will be watching the court’s new judges: Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch. Barrett is a bit of an unknown when it comes to environmental law, experts tell CNN.

“I think everyone bets she would tend to be more skeptical of agency authority,” Freeman said.

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