Supreme Court to review EPA authority over greenhouse gases

Nov. 8, 2021

The Supreme Court has agreed to review a court fight over the extent of the authority of the Environmental Protection Agency (EPA) to regulate greenhouse gases.

The court Oct. 29 consolidated four cases for joint review. The legal fight is over regulation of electric power generation, but states that petitioned the Supreme Court warned that if a January appeals court ruling is allowed to stand, EPA’s authority to revamp US buildings and equipment for emission control could be unlimited.

As lead plaintiff West Virginia put it in its petition, EPA’s authority under the appellate court ruling could extend to any sector of the economy where stationary sources produce greenhouse gases—oil and gas development, petrochemical plants, other industrial and commercial facilities of almost any kind, even home heating with gas.

States that petitioned the Supreme Court also question whether EPA can set binding nationwide performance standards for stationary sources that deprive states of all implementation and decision-making authority, which is how they see the Obama administration’s Clean Power Plan. The Clean Air Act gives states authority to propose standards for emissions from existing stationary sources, standards that EPA can overrule if found inadequate, but EPA chose to go ahead with its own standards without state proposals.

The US Court of Appeals for the District of Columbia Circuit ruled Jan. 19 that EPA’s authority to control CO2 is not limited to technological refinements but can include forcing electric utilities to shift to entirely different types of power generation (OGJ Online, Jan. 30, 2021).

The lead case at the Supreme Court is West Virginia v. EPA. The cases consolidated with it include North Dakota v. EPA and two coal industry lawsuits. About 20 states are urging the Supreme Court to overturn the appeals court, while another 20 states side with the appeals court and the Biden administration.

‘No limits’ argued

West Virginia told the Supreme Court that the D.C. Circuit’s interpretation of Section 111(d) the Clean Air Act amounts to a “no limits” approval of EPA to use whatever industry-reshaping and economy-transforming strategy it chooses.

The state cited Supreme Court precedents on how much authority can be delegated to a federal agency, including a precedent saying “the Constitution permits delegation so long as Congress provides ‘specific restrictions’ that ‘meaningfully constrain’ the agency’s scope of authority.”

West Virginia said the appeals court decision “grants EPA near-boundless authority,” and it noted that the states supporting the appeals court decision cite that decision’s statement that there are “no limits on the types of measures that EPA may consider.”

Which, according to West Virginia, is precisely the problem.

Section 111(d) of the act, designated in the US Code as 42 USC 7411(d), authorizes EPA to set standards of “achievable” emission limits using “adequately demonstrated” systems of emission reduction. But EPA set standards unachievable by many gas-fired and coal-fired power plants, plaintiffs contend.

In its Clean Power Plan, the EPA under President Obama claimed authority “to reshape the nation’s utility power sector by mandating standards impossible for coal and natural gas to meet without limiting operations, shutting down, or subsidizing investment in alternative energy generation that EPA preferred,” West Virginia told the high court.

A moot argument?

The Supreme Court in 2007 ruled that EPA could regulate CO2 as a pollutant, and under authority of that decision, the Obama administration issued its Clean Power Plan in 2015. The Trump administration repealed the Clean Power Plan and replaced it with the Affordable Clean Energy rule in 2019.

The three-judge panel of the DC Circuit vacated and remanded the Trump plan and invalidated the repeal of the Obama EPA’s Clean Power Plan, which initially meant the Clean Power Plan was reinstated. Then EPA said it would write a rule replacing the Clean Power Plan, and the appeals court stayed its own reinstatement of that plan.

That means the plaintiffs do not have a case in need of Supreme Court review, according to EPA’s brief opposing the petitions to the high court. Any legal contest in court should be based on claims of present or imminent harm, but such claims cannot be made against a plan that has been stayed to await a future plan, the agency told the Supreme Court.

“When the court of appeals’ stay order is taken into account, it is clear that the decision below does not subject petitioners to any present or imminent concrete harm,” EPA said in urging the court to reject the petitions.

West Virginia replied in an Aug. 24 filing that the Supreme Court should take the case partly because the real-world effects of the decision below include impacts on investment planning and decisions with consequences for years to come. The state also said the appeals court’s “no limits” interpretation of part of the Clean Air Act is worthy of review, and that the decision in the appellate court should be overturned because it is wrong.