The Trump administration's Affordable Clean Energy rule, which replaced an Obama rule, addresses greenhouse gas emissions at power plants, like the Homer City coal-fired plant in Indiana County, Pennsylvania.
Reid R. Frazier / StateImpact Pennsylvania
Reid R. Frazier / StateImpact Pennsylvania
The Trump administration's Affordable Clean Energy rule, which replaced an Obama rule, addresses greenhouse gas emissions at power plants, like the Homer City coal-fired plant in Indiana County, Pennsylvania.
The U.S. Supreme Court is set to hear a case later this month that will look at how the EPA regulates greenhouse gases. Legal experts say the case,Ā West Virginia v. EPA,Ā could mean more than just curtailing EPAās authority in addressing climate change. It could rein in other federal agencies.
āI think it is scary,ā said CaraĀ Horowitz, co-executive director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law.
Like many people, Horowitz was surprised last fall when the Supreme Court agreed to hear the case. āBecause in many ways the case is a dead letter,ā she said. āItās not totally clear what exactly the court is reviewing.ā (Horowitz co-authored anĀ amicus briefĀ to the Court on behalf of electric grid experts.)
The case stems from rules created by the Environmental Protection Agency during the Obama administration known as theĀ Clean Power Plan, which attempted to shift the electricity sector away from coal-powered plants, and toward cleaner energy sources, like wind and solar power.
The Clean Power Plan was challenged in court, and the Supreme Court issued a stay pending the lower court decision. The CPP never went into effect.
It was replaced by the Trump administration with theĀ Affordable Clean Energy (ACE) rule, which didnāt regulate where power plants were getting their energy; it looked only at reducing emissions at the plant level.
āWhat some folks call an āinside the fence lineā approach,ā Horowitz explained, āwhere EPA can look only at each individual coal-fired plant and make it take steps to be more efficient, and thatās it.ā
The ACE rule was also challenged in court, and in January 2021, the D.C. Circuit Court of AppealsĀ ruled in that case. āThe D.C. Circuit said, āNah, youāre not interpreting and applying the Clean Air Act correctly. Your regulation is far too weakā,ā Horowitz said.
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The appellate court ruling went a step further, according to Jonathan Adler,Ā Director of the Coleman P. Burke CenterĀ for Environmental Law,Ā at Case Western Reserve University.
āThat the agency had the obligation to adopt a regulation governing greenhouse gas emissions from power plants, and that that needed to be the sort of expansive regulation that the Obama administration had adopted,ā Adler said.
That lower court decision is what will be formally reviewed by the Supreme Court on Feb. 28.
After the ACE Rule was thrown out,Ā West Virginia, Ohio and other statesĀ petitionedĀ the Supreme Court to look at the issue.
While Pennsylvania joined dozens of cities and states inĀ opposition, arguing there was no rule in place for the Court to consider.
It sided with West Virginia.
āWhat makes it odd is that the rule that the D.C. Circuit had been weighing in on no longer exists,ā said Horowitz.
TheĀ Biden administrationĀ has said it intends to write its own rule.
The Supreme Court usually finds reasons not to hear cases, which is why Horowitz and many other experts are concerned that the Court has other reasons for taking this case.
āI think itās not a bad bet to assume that the justices reached out and decided to take the case because they want to make a statement about EPAās authority,ā she said. āAnd given the makeup of this court, one has to assume that that statement about EPAās authority is going to constrain the agency.ā
Jonathan Adler is less sure that the court will look more deeply at the authority of the EPA, but if it does, theĀ Major Questions DoctrineĀ could come into play.
āThe idea of the Major Questions Doctrine is essentially that Congress does not delegate to agencies broad regulatory power without saying so,ā he explained.
When Congress creates a sweeping law, in this case, the Clean Air Act, it delegates broad power to agencies to fill in the details, but according to the Major Questions Doctrine when agencies move in new directions, like shifting to cleaner energy, courts should not assume Congress has given agencies this authority,
āAnd so when you have a statute like (the Clean Air Act) that was last amended more than thirty years ago, where Congress was thinking about the sorts of control measures that were applied to traditional pollutants, it would be unusual to interpret that provision as containing the latent power to reorder the entire power sector of the economy,ā Adler explained
It would take an act of Congress to give EPA that power, he said. Horowitz isnāt holding her breath for that.
āIn this hyper-polarized political environment, itās not like Congress is going to step in and say, āOh, then weāre going to give EPA more authority,āā she said.
Horowitz and others fear this case could have implications for other federal agencies.
āYou could take that same reasoning cut and paste it across a range of different statutes that give an agency the authority over everything from immigration decisions to health care decisions, to the environment, public safety, worker safety and use that same reasoning to restrict agency authority in all of those arenas and others,ā she said.
A decision in the case is expected in June.
