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Climate bill is big win for Dems but doesn’t address high court defeat 

The newly minted law defines greenhouse gases under the Clean Air Act for the first time, something separate from what the Supreme Court struck out in June.

WASHINGTON (CN) — Democrats who scraped together their razor-thin majority this summer to pass the Inflation Reduction Act, boosted by a key vote in barely blue coal country, made significant headway on the country's legislative response to climate change. What they didn't do, though, was deal with new precedent hampering the shift away from coal-fired power plants. 

The Supreme Court handed down the 6-3 opinion in June, saying the Environmental Protection Agency was wrong to draft criteria, without explicit direction from the legislative branch, that would guide states away from coal-fired power plants.

As the court's conservative supermajority saw it, such action amounts to a “major question” that the exceeds agency authority. 

The use of the major questions doctrine in West Virginia v. EPA was an especially remarkable one — essentially announcing that any government agency action could be challenged unless Congress has clearly delegated the authority for such action. It also notified lawmakers that they must be specific when directing agencies. 

Democratic lawmakers took note. This month President Joe Biden signed the Inflation Reduction Act into law marking the most far-reaching changes to the Clean Air Act since 1990. The legislation modernizes the act by reenforcing and expanding the EPA’s authority to address climate change. 

“This major questions doctrine does cast kind of a pall on agency rulemaking more generally where there's any ambiguity — and there's always ambiguity in environmental or health safety laws,” Jason Rylander, a senior attorney at the Climate Law Institute Center for Biological Diversity, said in a phone call. “It is extremely helpful to have Congress state in new legislation for the first time since the 1990s that they take climate change seriously and EPA has both the authority and the duty to address it.” 

Even so, nothing in the Inflation Reduction Act addresses the West Virginia opinion. West Virginia was specifically related to how the EPA regulates coal-fired power plants. The IRA focuses on incentives for switching to cleaner power, not regulation. 

“It essentially provides the opportunity to kind of jumpstart or supercharges technological change in renewable energy, electric vehicle adoption, and various other areas,” Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment and Evan Frankel professor of policy and practice at UCLA School of Law, said of the IRA in a phone call. “It doesn't do anything directly that relates to any of the EPA’s regulatory programs where EPA has the authority to regulate their air pollution emissions.” 

One thing the IRA does do is include definitions of air pollutants that the EPA could regulate under sections of the Clean Air Act. This explicit definition does follow the new standard set by West Virginia by addressing the major questions doctrine. Lawmakers made sure the EPA had explicit authority to regulate greenhouse gas emissions — which it defines as air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride. 

“What we're seeing with this emergence of this major questions doctrine is a revived interest among conservative attorneys general and libertarian legal groups to question whether EPA has authority to regulate greenhouse gases at all, let alone just the means the way that they did in Section 111,” Rylander said. 

He continued: “So by putting this provision in the IRA, that directly defines CO2, methane, hydrochlorofluorocarbons, nitrous oxide fluorocarbons, and sulfur hexafluoride as pollutants, Congress is directly stating these are in fact pollutants. They are within your warehouse and EPA, you have both the authority and the duty to address them just as you would any other pollutant.” 

Here, the response to the court’s ruling in West Virginia ends. The EPA’s authority to regulate greenhouse gases was actually addressed by a 2007 case at the court. In Massachusetts v. EPA, the court ruled 5-4 that the EPA had the authority under the Clean Air Act to regulate carbon dioxide and other greenhouse gases. 

Experts say this action makes it less likely that states will try to challenge Massachusetts in the future, but it probably won’t affect litigation on the horizon. 

“Congress saying that greenhouse gases are air pollutants has some value in that it ratifies the Massachusetts v. EPA decision, but it certainly doesn't seem to me to mean to have any particular implications for whether any particular EPA decision or regulation is going to be upheld by the courts,” Hecht said. 

Future litigation in this area will depend on how the EPA decides to regulate greenhouse gases but experts say the agency is likely to see a challenge on almost anything they propose. 

“I see more litigation in the future over this, but again, that litigation is not going to be about whether greenhouse gases are pollutants, it's going to be about whether under some particular provision of the Clean Air Act whether the agency has overstepped what Congress intended the agency to have the power to do,” Hecht said. 

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