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Supreme Court conservatives seem skeptical of EPA’s authority for broad emissions regulation

Homes near the coal-fired John E. Amos power plant in Poca, W.Va., on Feb. 11. (Dane Rhys/Bloomberg News)
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Some of the Supreme Court’s conservative justices seemed skeptical Monday that the Environmental Protection Agency can proceed with sweeping regulation of climate-warming emissions from the nation’s power plants without clearer authority from Congress.

Such a finding would be in step with the justices’ worry that federal agencies are exceeding the powers granted to them. But it would be a huge blow for the Biden administration, which has ambitious plans to drastically cut emissions and would like the U.S. power grid to run entirely on clean energy by 2035.

In Monday’s two-hour hearing, Justice Samuel A. Alito Jr. indicated that the ambitious plans of the administration implicated the “major questions” doctrine. That says agencies undertaking such actions must be clearly authorized by Congress, rather than relying on general language in federal law, in this case the Clean Air Act.

He said the EPA is claiming “authority to set industrial policy and energy policy and balance such things as jobs, economic impact, the potentially catastrophic effects of climate change, as well as costs.”

EPA's powers to combat climate change hang in balance in Supreme Court case

Solicitor General Elizabeth B. Prelogar said that the law does limit what the agency can do. The real problem, she said, is that the administration has not formulated its regulations and won’t before the end of the year.

But she did not seem to be having much luck in convincing the court that it should wait until the regulations come out before deciding the parameters of the EPA’s authority.

West Virginia v. EPA is the latest battle pitting the coal industry and Republican-led states against a Democratic administration that proposes sweeping changes to the way the nation’s power sector produces electricity, the nation’s second-largest source of climate-warming pollution.

The current Supreme Court is even more conservative than the one that stopped the Obama administration’s plan to drastically reduce power plants’ carbon output in 2016. The plan never went into effect, but its emission reduction goals were met ahead of schedule because of economic conditions that made coal-fired plants more expensive.

A more lenient plan was promulgated by the Trump administration, which said its reading of the law limited the EPA’s actions to regulating emissions at a specific site instead of across the system, a restriction that has come to be known as “inside the fence.”

But on the last day of the Trump administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit said that was an intentional “misreading” of the law.

“The EPA has ample discretion in carrying out its mandate,” the decision concluded. “But it may not shirk its responsibility by imagining new limitations that the plain language of the statute does not clearly require.”

As a result, the Trump rules were struck, the Obama rules were not reinstated and the Biden administration has yet to formulate its plan — which was why Prelogar said the court should hold off on any momentous decision.

What the Republican states and coal industry want, she said, “is a decision to constrain EPA’s authority in the upcoming rulemaking. That is the very definition of an advisory opinion, which the court should decline to issue.”

Lindsay S. See, West Virginia’s solicitor general, said it was important for the court to address the D.C. Circuit’s ruling on the EPA’s authority.

As a result of that ruling, she said, “EPA can now regulate in ways that cost billions of dollars, affect thousands of businesses and are designed to address an issue with worldwide effect. This is major policymaking power under any definition.”

Washington lawyer Jacob M. Roth, representing coal-mining interests, also claimed the EPA was exceeding its authority.

The EPA wants to “effectively dictate not only the technical details of how a coal plant operates but also the big-picture policy of how the nation generates its electricity,” Roth said.

Justice Elena Kagan said it made no sense to say the law authorizes “inside the fence” regulation but not “outside the fence” as a way to limit the agency’s authority.

“There are inside-the-fence technological fixes that could drive the entire coal industry out of business tomorrow,” Kagan said to See. “And an outside-the-fence rule could be very small or it could be very large.”

“So the rule that you’re saying sort of emerges from this statute, which is an inside-the-fence/outside-the-fence rule, bears no necessary relationship to whether a rule is major in your sense of expensive, costly, destructive to the coal industry,” Kagan said.

If the coal industry was on one side at the court, some of the nation’s largest power plants were on the other, supporting the federal government. Washington lawyer Beth S. Brinkmann told the justices that the industry has invested heavily in reducing emissions and that the EPA needed flexibility beyond regulating conditions in individual plants.

“Congress directed the expert agency to look to reality when it makes the empirical determination of the best system of emission reduction,” she said.

Still, the justices returned to the issue of whether there was clear authority.

The court in January stopped the Biden administration’s plans for a vaccine-or-testing mandate for large employers, proposed by the Occupational Safety and Health Administration. And last summer it ruled against extending a nationwide eviction moratorium during the pandemic put in place by the Centers for Disease Control and Prevention.

In both, Chief Justice John G. Roberts Jr. said, the executive branch was proposing massive programs that seemed to go beyond the agency’s charge.

Justice Brett M. Kavanaugh suggested the EPA might run up against the same problem.

“One thing we said is that Congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance,” Kavanaugh said. “And the second thing we said is that the court greets with a measure of skepticism when agencies claim to have found in a long extant statute an unheralded power to regulate a significant portion of the American economy.”

Prelogar countered that the Supreme Court previously found that Congress expected the EPA to regulate existing power plants for greenhouse gas emissions.

This “is right in EPA’s wheelhouse because this court already recognized that Congress conferred on EPA, the expert agency, the authority here to make those judgments,” she said.

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