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Power to regulate coal plant emissions at high court crossroads

The conservative majority seemed skeptical of endorsing the EPA's authority to fight climate change.

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. 

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“There are some people in the court that were already kind of interested in this not totally defunct regulation,” Datla said. “All the briefs were pitching this case to the court like apply the major questions doctrine here … and I think what the argument today revealed is that maybe they were too eager to want to do that because it's really hard to do that in the abstract and that's what is that's all there is here.” 

The EPA’s power to regulate carbon emissions from these coal plants may hinge on how the justices define the major questions doctrine. The doctrine has been used by the court’s conservative majority to say that Congress must directly address broad agency action that goes beyond its authority. No consensus on application is apparent, however, despite the justices using it in previous cases related to coronavirus mandates — including vaccine-or-test rules for workers and the eviction moratorium. 

In her estimation, Kagan said an agency could be considered to have stepped beyond its authority under the doctrine if there is ambiguity in a statute. She provided an example of the Food and Drug Agency regulating tobacco. 

Justice Amy Coney Barrett, keeping with the line of thinking Kagan proposed, said the EPA regulating greenhouse gases would fit within the agency's wheelhouse. But that is not how the states and coal companies claim the major questions doctrine should be applied in this case. 

“You're describing something a little bit different than what Justice Kagan was asking you,” the Trump appointee said. “You're saying, when you look at the scheme, this is a really big deal. How do we decide that? That's a little bit different than a mismatch between the subject of the regulation and what the agency does.” 

Other justices and the states and coal companies viewed the doctrine in a much broader sense. 

“They're having to confront all the indeterminate use of this doctrine as it's currently kind of being pitched to the court,” Datla said. “They're going to have to write an opinion in this case, and I think that's one of the reasons why some of the justices were asking questions about the text of the statute is. Because it would be easier just to write an opinion based on the statute itself and not get into the major question doctrine and have to answer those difficult questions about what it actually is.”

The government argues that the major questions doctrine shouldn’t be used in the case because the regulation wouldn’t have major consequences even if it was being used, which it is not. 

“Petitioners are wrong to say that this case implicates a major question,” Prelogar said. “For all their criticisms of the CPP we know that it wouldn't have had major consequences. The industry achieved the CPPs emission limits a decade ahead of schedule and in the absence of any federal regulation. Given that reality, petitioners ask the court to focus on the nature of the statute in the abstract, not on the particular effects of any particular regulation, but that is never how this court has looked at major questions and it just reinforces the petitioners are seeking an advisory opinion.” 

Environmental groups condemned the GOP-led states and coal companies for fighting regulations despite the harms caused by emissions. Earlier Monday, the United Nations released a report warning that climate change will make the world more dangerous in the next 18 years. 

“It was grotesque to hear Big Coal’s lawyers argue for tying EPA’s hands on cutting climate-heating pollution, even as the world’s scientists warn of a bigger, worsening swath of human suffering,” Jason Rylander, an attorney at the Center for Biological Diversity's Climate Law Institute, said in a statement. 

Despite the possibility that the justices could limit federal government authority to regulate pollution from coal plants, Rylander urged Biden to act under other authorities at his disposal. He also claimed the court’s actions on this case may be a reason for court reform. 

“The court proceedings showed clearly that those opposing climate regulation are wrong at every step of the analysis,” said Rylander. “If the far-right majority on the Supreme Court were to nonetheless block the EPA from addressing deadly greenhouse gas pollution, then Biden must lead the way on court reform to halt this power grab.”

Not all of the justices felt the EPA had exceeded its authority. Justice Elena Kagan said the statute was not the broad overarching regulation that the states and coal companies claimed it was. 

“This is not a kind of, you know, regulate-to-the-end-of-the-world kind of statute,” the Obama appointee said. “It very clearly says that there are other constraints that have to be considered to impose reasonable limits.” 

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