WASHINGTON (CN) — President Joe Biden’s climate agenda hung in the balance Monday as the Supreme Court spent two hours probing the government's regulation of carbon emissions.
“What weight do you assign to the effects on climate change — which some people believe is a matter of civilizational survival — and the costs and the effect on jobs,” Justice Samuel Alito asked.
The case before the court pits the federal government against Republican-led states and coal companies, which say that the Environmental Protection Agency overstepped its authority by adopting a carbon regulations with outsized political and economic impacts. A narrow ruling on the case seems likely, but environmental advocates warn that the government needs every authority at its disposal to fight climate change.
“I think one thing that came out of the argument is that everybody involved seems to agree that the EPA does have the authority to regulate greenhouse gas emissions from power plants, it's a question of how they can do that,” Kirti Datla, director of strategic legal advocacy at Earthjustice, said in a phone call. “So that is mildly comforting, but … every ton of carbon emissions matters at this point, and there's no need for this court to be hearing this case and potentially making it harder for EPA to reduce those emissions.”
That the court is hearing the case at all has confounded some because the rule being challenged is one that the government has no plans to use after its termination during the Trump administration.
The EPA established the Clean Power Plan through its Clean Air Act powers in 2015 to address carbon dioxide emissions from power plants. Separate from the initial challenges that the rule faced, its withdrawal under President Donald Trump spurred separate litigation. The D.C. Circuit has since vacated the repeal of the Clean Power Plan and the EPA's adoption of replacement guidelines that are known as the ACE rule, short for Affordable Clean Energy.
Meanwhile the EPA has determined that it no longer want to use either the Clean Power Plan or ACE rule. Despite getting a stay in the proceedings to formulate yet another new rule, the coal companies and GOP-led states brought the case back to the high court.
“Petitioners aren't harmed by the status quo and can't establish Article III injury from the D.C. Circuit's judgment,” Solicitor General Elizabeth Prelogar said this morning at oral arguments . “Instead, what they seek from this court is a decision that constrains EPA authority in the upcoming rulemaking. That is the very definition of an advisory opinion which the court should decline to issue.”
It is the states' claim, however, that the standing question should not matter when the merits question involves a transformative power that would reshape the energy sector and cost billions of dollars.
“Read together, key statutory terms like the requirements standards before individual sources and focused on their performance show that Congress did not greenlight this transformative power,” Lindsay See, West Virginia’s solicitor general, said. “And finally standing is no reason to avoid the merits.”
Justice Brett Kavanaugh questioned whether the evolving within the agency could render their efforts moot.
“What happens to this case if EPA issues a new rule before we decide this case,” the Trump appointee asked.
Jacob Roth, an attorney for Jones Day representing the North American Coal Corporation, said it would depend on what the rule was but if the agency issued a final rule it would make the case moot.
But experts say this question reveals the justices may have been too eager to take the case in the first place when the agency said it would issue a new rule by the end of the year.