Supreme Court considers limiting EPA’s ability to fight climate change

WASHINGTON — Members of the Supreme Court’s conservative majority on Monday questioned the scope of the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, suggesting the justices could strike a blow hard on the Biden administration’s efforts to address climate change.

The questioning during the two-hour argument was mostly technical, and several conservative judges did not bow their hands. But those who did seemed skeptical that Congress had wanted to give the agency what they said was broad power to set national economic policy.

Climate change was only mentioned in passing and only to support the point that an executive agency should not be allowed to tackle such a broad issue without the express permission of Congress.

A ruling against the EPA would significantly reduce its ability to regulate the energy sector, limiting it to measures such as emissions controls at individual power plants and, in the absence of legislation, excluding more ambitions like a cap-and-trade system as experts issue increasingly dire warnings about accelerating global warming.

But the implications of a ruling against the agency could extend well beyond environmental policy and signal further that the court’s newly expanded six-judge conservative majority is deeply skeptical of the power of administrative agencies to solve problems. challenges facing the nation and the planet.

This skepticism has been evident in recent decisions stemming from the coronavirus pandemic. The court ruled, for example, that the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration was powerless to tell large employers to vaccinate their workers or to undergo frequent testing.

On Monday, similarly, Judge Samuel A. Alito Jr. told an EPA attorney that he questions whether the Clean Air Act “gives you the power to set industrial policy and energy policy and balance elements such as jobs, economic impact, potential catastrophic effects of climate change, as well as costs.

He added a note of apparent skepticism about climate change, saying it is a phenomenon “that some people regard as a matter of the survival of civilisation”.

General Counsel Elizabeth B. Prelogar, representing the EPA, responded that the court should not deny the agency “the much-needed flexibility to exercise common sense and common, well-established boundaries in this industry” for things like emissions credit trading.

She also noted that “the power plants are on our whole side in this case,” in part because “they want that kind of flexibility because it’s like nothing is wrong with them.”

Some judges seemed to think the case was more difficult than previous ones.

In the eviction moratorium case, Judge Amy Coney Barrett said, the issue was whether “the CDC can regulate the landlord-tenant relationship.”

“Here,” she says, “if we think of the EPA regulating greenhouse gases, well, there’s a correspondence between regulation and the wheelhouse of the agency, isn’t there? “

The justices appeared to have little appetite for an argument advanced by the Biden administration and environmental groups: that the four cases before the court were not ripe for a decision because there are no regulations in place. They argued that the court should wait to answer concrete questions rather than rule on hypothetical questions.

Ms. Prelogar said the administration was working on a new settlement, which the courts could consider after it is released.

Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer have indicated they believe the Supreme Court need not wait. But Judge Neil M. Gorsuch said “the Solicitor General makes a strong argument that the states are not harmed here because, as it stands, there is no rule in place.”

Much of the argument centered on whether the Clean Air Act allowed the agency to enact sweeping regulations in the electricity sector and, more broadly, on the clarity with which Congress should authorize executive agencies to deal with major political and economic issues to make their regulations legal.

The court called this inquiry the “major issues doctrine”. Judges appeared divided on how this applied to the cases before them.

Jacob M. Roth, a lawyer for coal companies challenging the EPA’s authority, said the main distinction was between regulating individual power plants and the entire power industry. The latter, he said, was a major issue that did not have congressional authorization.

He used an analogy based on setting fuel performance standards for cars to describe the limits of EPA discretion.

“What we mean is I can get 30 miles per gallon, I can get 35 miles per gallon,” he said. “We don’t want to say that I can take the bus. We don’t mean I could stay home.

Lindsay S. See, solicitor general of West Virginia, said the agency shouldn’t be allowed to regulate an entire industry.

“This is a major question,” she said, “because it allows the EPA to determine what the electricity sector as a whole should look like and who can be part of it,” she said. she declared. “It turns the law into something about how a particular source can work most effectively.”

Last year, on the last full day of Donald J. Trump’s presidency, a federal appeals court in Washington overturned his administration’s plan to ease restrictions on greenhouse gas emissions from power plants. . The Trump administration said the Clean Air Act unambiguously limits the measures the agency can use to those “that can be put into service in a building, structure, facility, or facility.”

A three-judge split panel of the United States Court of Appeals for the District of Columbia Circuit ruled that the Trump administration’s plan, called the Affordable Clean Energy Rule, was based on a “fundamental misinterpretation” of the relevant law, prompted by a “tortured series of misreadings”.

“The EPA has broad discretion in carrying out its mandate,” the decision concluded. “But he cannot shirk his responsibility by dreaming up new limitations that the plain language of the law does not clearly require.”

The panel did not reinstate a 2015 Obama-era settlement, the Clean Power Plan, that would have forced utilities away from coal and towards renewable energy to reduce emissions. But he rejected the Trump administration’s attempt to replace that rule with what critics called toothless.

The appeals court ruling also paved the way for the Biden administration to impose tougher restrictions.

The Obama-era plan aimed to reduce electricity sector emissions by 32% by 2030 from 2005 levels. carbon emissions from power plants by phasing out coal and increasing renewable energy production.

The Clean Power Plan never came into effect. It was blocked in 2016 by the Supreme Court, which effectively ruled that states did not have to comply until a barrage of lawsuits from conservative states and the coal industry were cleared up. resolved. The ruling, followed by changes to the Supreme Court’s makeup that shifted it to the right, made environmental groups wary of what the court might do in climate change cases.

The Supreme Court heard all four cases, including West Virginia. vs. Environmental Protection Agency, n° 20-1530, the same day that a group of experts convened by the United Nations published the most comprehensive study to date on the threats posed by global warming. The report, endorsed by 195 governments, found that the dangers of climate change are greater and unfolding faster than expected and that humanity could find it difficult to adapt to the consequences unless greenhouse gas emissions greenhouse are rapidly reduced over the next few decades.

“Any further delay in anticipated concerted global action,” the report says, “will miss a brief and rapidly closing window of opportunity to secure a livable and sustainable future for all.”

Brad Plume contributed report.

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