Another hurdle for Biden’s climate goals: the Supreme Court

Court to hear arguments on the EPA’s legal ability to regulate greenhouse gas emissions

A ruling from the court could narrow the EPA’s authority under the Clean Air Act to regulate greenhouse gases from the power sector, the second-largest source of emissions nationwide. (Tom Williams/CQ Roll Call file photo)
A ruling from the court could narrow the EPA’s authority under the Clean Air Act to regulate greenhouse gases from the power sector, the second-largest source of emissions nationwide. (Tom Williams/CQ Roll Call file photo)
Posted November 2, 2021 at 10:45am

As he tries to wrangle environmental support abroad, President Joe Biden faces a new climate challenge in Washington, where the Supreme Court could upend the EPA’s power to regulate carbon emissions under a long-standing air pollution law.

In an order late Friday, the court agreed to hear arguments in a case from Republican attorneys general and coal companies calling on it to limit the EPA’s legal ability to regulate greenhouse gas emissions.

The challenge to EPA’s authority stems from a January ruling from the U.S. Court of Appeals for the District of Columbia Circuit, which vacated the Trump administration’s primary environmental regulation for electric utilities, sending it back to EPA and giving the Biden administration the chance to write its own rule on emissions from the power sector.

“It’s hard to know how big a deal it will be,” Sean Hecht, an environmental law professor at UCLA, said in an interview. “But it seems unlikely that the court would have accepted review of the case if they weren’t planning on disagreeing with the D.C. circuit.”

The court’s decision to hear the case “certainly isn’t a good sign for climate action at EPA,” he said.

A ruling from the court, with its 6-3 conservative majority, could narrow the EPA’s authority under the Clean Air Act to regulate greenhouse gases from the power sector, the second-largest source of emissions nationwide, at a time when climate scientists say Earth has nearly exhausted its ability to absorb carbon emissions before warming to an unmanageable degree.

Experts said a court ruling limiting EPA’s authority may have knock-on effects for other federal agencies and squeeze their decision-making authority on issues of public policy by consolidating power in judges and Congress.

The case, which is consolidated from four lawsuits into one, turns on the question of whether EPA has the authority to issue rules of “sweeping economic and political significance” without explicit direction from Congress.

Such a standard could place decisions from federal agencies with specific expertise, such as air pollution, with courts that aren’t as knowledgeable and with Congress, which has grown more partisan and gridlocked in recent years, experts said.

“Requiring express congressional decisions on all matters of 'sweeping economic and political significance' may sound good,” Dan Farber, a professor of environmental law at the University of California, Berkeley, said in a blog Monday. “But that vague standard puts administrative actions taken under broader mandates at the mercy of highly subjective decisions by judges regarding the economic and political stakes of a dispute — matters that are well outside their competence.”

Hecht said it is unusual for the Supreme Court to intervene in a case on a federal rule still in progress, noting that the EPA under Biden is working on its own replacement to the Trump-era regulations on emissions from the power sector that were vacated in January.

The West Virginia case consolidated with three others. Two are from coal mining companies and a third is from the state of North Dakota. Seventeen other states and Mississippi Gov. Tate reeves signed on to the West Virginia petition.

'Judicial overreach'

“I think of this as judicial overreach masked as judicial humility,” Hecht said, adding that this decision to hear the case complicates matters for the EPA.

“It’s going to be much harder for EPA to complete a new rulemaking in this unstable environment with the Supreme Court pending,” he said. “If you were a lawyer at EPA today, you would now be very confused what to advise your client.”

In a statement posted on Twitter after the court granted the review, EPA Administrator Michael Regan did not mention the case but said the agency would “ensure that all Americans are protected” from emissions from power plants.

“Power plant carbon pollution hurts families and communities, and threatens businesses and workers,” Regan said. “The Courts have repeatedly upheld EPA’s authority to regulate dangerous power plant carbon pollution.”

Speaking in New York City on Monday, Vice President Kamala Harris said the administration “believes that the Supreme Court should reaffirm what it has said before — that the EPA has the authority to keep our families and our communities safe from pollution.”

The government had urged the court not to take the case, saying the appeal was “premature” and noting the power sector has changed in the last “several years.”

GOP members of Congress cheered the Friday decision and Patrick Morrisey, the Republican attorney general of West Virginia who appealed the January ruling.

“This is a tremendous victory for West Virginia and our nation,” Morrisey said in a statement. “We are extremely grateful for the Supreme Court’s willingness to hear our case.”

In their petition, West Virginia and the other conservative-leaning states said the court should “intervene now” because of uncertainty from the agency.

“How we respond to climate change is a pressing issue for our nation, yet some of the paths forward carry serious and disproportionate costs for States and countless other affected parties,” their brief says.

Sen. Shelley Moore Capito, R-W.Va., thanked Morrisey for appealing the January ruling. “This is an important case to demonstrate that elected representatives, not administrative agencies, are responsible for making our nation’s laws,” she said.

Global talks

The decision to grant petitions to hear the case arrived as Biden was in Italy for Group of 20 climate talks but before he reached Glasgow, Scotland, where an international climate summit began Sunday.

Speaking in Scotland on Monday, Biden, whose $1.75 trillion climate and social spending bill is teetering in Congress as Sen. Joe Manchin III, D-W.V., continues to withhold support, said climate change is in the present, not the future.

“Climate change is already ravaging the world,” Biden said. “It’s destroying people’s lives and livelihoods and doing it every single day.”

The Biden administration has pledged the U.S. would cut emissions by at least 50 percent, from their 2005 levels, by the end of the decade, 2030.

Karen Sokol, an environmental law professor at Loyola University New Orleans’ law school, said in an interview it would be “devastating” to the country’s goals even if the court imposes narrow limits on what EPA can regulate under the Clean Air Act rather than more exhaustive barriers.

“That’s essential climate policy and we just don’t have time,” Sokol said of the statute.

For decades, the Clean Air Act, which became law in 1970 before being amended in 1977 and 1990, has been a workhorse for climate law in the U.S., providing a foundation for the federal government to address air pollution. In a landmark environmental ruling in the 2007 case Massachusetts v. EPA, the court held in a 5-4 vote that the EPA had the authority to regulate greenhouse gases under the Clean Air Act.

Of the majority in that case, only Justice Stephen Breyer remains on the court, while justices John Roberts, Clarence Thomas and Samuel Alito — who voted in the minority, along with the late Antonin Scalia — are still on the bench.

As the administration’s climate bill has stagnated on Capitol Hill, Biden officials have said they can turn to federal agencies to knock down emissions.

“We don't need Congress,” Karine Jean-Pierre, the deputy White House press secretary, said Oct. 21 when asked how the administration plans to meet its climate goals. “We can do it without Congress.”

With its climate centerpiece wrapped up in congressional debate, the Biden White House, Sokol said, has “to put a lot of climate eggs in its regulatory basket.”

By taking the case, the Supreme Court has complicated or even sealed off federal climate options in the U.S., historically responsible for the largest share of emissions of any country, as global emissions trend upward despite the COVID-19 pandemic, Sokol said.

“We’ve basically got no climate response, except at the state level,” she said. “But we need national and global action as well. … The timing is really uncanny.”

The lead case is West Virginia v. EPA. That case is consolidated with North American Coal Corp. v. EPA, North Dakota v. EPA and Westmorland Mining Holdings v. EPA.