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Unusual rule challenge at Supreme Court threatens America’s reckoning on global warming

The government’s authority to respond to climate change hangs in the balance as the justices consider a regulatory battle rendered all but moot by the rescission of the underlying regulation.

WASHINGTON (CN) — An effort to hobble climate change action using a made-up constitutional doctrine and a defunct rule is set to go before the Supreme Court on Monday.

Republican-led states and coal companies have asked the court if a provision of the Clean Air Act allows the EPA to issue significant rules capable of reshaping electricity grids and unilaterally decarbonizing the economy, so long as it considers cost, nonair, and energy requirements. As their opponents have been quick to point out, however, the rule that allowed challengers to bring their cases to the high court isn’t even in use anymore. 

“It's just a very odd, unusual, aggressive move for the court to take this case because it knows that EPA is at this very moment writing a new rule that reflects the current reality and, quite frankly, the court's shown no hesitation in jumping into review roles like this very quickly,” Kirti Datla, director of strategic legal advocacy at Earthjustice, said during a Georgetown Law panel discussion on the case last week. 

Datla continued, “There's something very unusual about this case that probably tells us something about this court.” 

The Clean Air Act historically has allowed the EPA to create regulatory programs that control air pollution from stationary sources like factories and power plants. To address carbon dioxide from power plants, the agency in 2015 established the Clean Power Plan, which gave states emission guidelines to follow when creating plans to limit carbon dioxide from existing power plants. The EPA first had to pinpoint the best system of emissions reduction for these plants, landing on a system that used three measures, two of which qualified as “generation shifting” because they move electricity generation from higher-emitting sources to lower-emitting ones.

Multiple states and private parties challenged the plan, which was then put on hold pending the Supreme Court’s review. The case was ultimately dismissed when the EPA decided to reassess its position on the rule. In 2019, the EPA repealed the Clean Power Plan on the grounds that it exceeded the agency’s authority. The Affordable Clean Energy Rule, or ACE Rule, was then adopted in its place. 

The ACE Rule set emission guidelines only for existing coal-fired plants because the EPA determined it did not have enough information to issue guidelines for other existing plants. This rule adopted only the first measure of emissions reduction systems — heat-rate improvements — of the three initially pinpointed for the Clean Power Plan. 

But the repeal of the Clean Power Plan brought its own challenge from states and private parties, leading a court of appeals to vacate both the repeal and the ACE rule, and send them back to the EPA for further proceedings. Clearly noting that it did not wish to reinstate the Clean Power Plan, the agency asked for a stay during which the EPA could create another new rule. The motion was granted. 

Even so, Republican-led states and coal companies will be back at the Supreme Court next week to challenge the Clean Power Plan’s generation-shifting approach to regulate carbon dioxide emissions from existing power plants. The EPA says the issue is moot because the rule is no longer in effect and the agency has no plans to reinstate it. 

“The question whether the Clean Power Plan was lawful has no continuing practical significance, since that Plan is no longer in effect and EPA does not intend to resurrect it,” Solicitor General Elizabeth Prelogar wrote in the government’s brief

West Virginia — which leads a group of 17 states in its petition — claims the Clean Power Plan allows the EPA to make large political and economic actions without clear textual statements that Congress wanted it to do so. 

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“Ultimately, EPA’s efforts were no ordinary regulatory action,” West Virginia Solicitor General Lindsay See wrote in the state’s brief. “And no matter ‘how serious the problem’ at stake, an agency ‘may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.’”

Claiming the EPA was attempting to bypass Congress, the North American Coal Corporation says the major-questions doctrine should prevent the agency from having this authority. 

Even if the court were correct that this statute could be read to authorize any national climate change policies that the EPA finds ‘best,’ the major questions doctrine forecloses that construction,” Yaakov Roth, an attorney with Jones Day, wrote in the coal company’s brief. “This Court has long refused to discover, in mouseholes far larger than this, vast delegations of power for agencies to resolve major economic and political questions.” 

The major-questions doctrine is a carveout 1984 precedent from Chevron USA Inc. v. National Resources Defense Council Inc. While Chevron says that courts should defer to agencies on statute interpretation unless degreed by Congress, the major-questions doctrine creates an exception to that rule, requiring explicit congressional authorization if an agency takes broad action that goes beyond its authority.

Earlier this term the court’s conservative majority used this doctrine to shoot down the federal vaccine-or-test mandate ordered for large private employers. Court watchers say the justices could use it again in this case — an outcome they warn could be an abuse of judicial power. 

“I believe that the major questions doctrine is an abuse of judicial power that is nearly as bad as the problem of overly broad delegations that it's trying to cure,” Donald Elliott, distinguished adjunct professor at George Mason University, said during last week’s panel. 

Concerns about the justices’ use of the major-questions doctrine are not universal. Some experts say the justices are just asking Congress to speak clearly on big decisions. 

“The idea that Congress under our constitutional system has some obligation to speak clearly on these issues, I think is sort of a sensible one,” said Jeff Holmstead, partner and chair of environmental strategies group at Bracewell. 

In the EPA case, states and coal companies are arguing not that the agency doesn’t have authority under the Clean Air Act but that its authority extends only so far. 

“If you look at what the parties are arguing in this case, for the most part, they're not saying there's no authority under the Clean Air Act, they're just saying this is too much authority,” Lisa Heinzerling, professor at Georgetown Law, said. 

In the context of this case, experts argue that the Clean Air Act was designed to be flexible to adapt to emerging technology. 

“I think it's particularly odd to apply that to a statute like the Clean Air Act, which by design was intended to be technology-forcing, to be adaptive as new pollutants became clear public health problems, as the sources became clear threats to the public health,” Datla said. “It's just so odd to say that you need to provide a precedent for the exact type of regulation that you want to do in a statute that was designed to be more flexible and not the sort of command and control model.” 

Experts say the court took this case because the justices are eager to decide the question presented to them even when there is no current rule to challenge. 

“I think they deeply want to answer this question,” Heinzerling said. “I think they've been waiting since February 2016 when they stayed the Clean Power Plan to answer this question.” 

Limiting the government’s ability to combat climate change, as this case could, would have serious consequences. A group of climate scientists appealed to the court in an amicus brief about the federal government’s role in preventing further damage from climate change. The scientists lay out in great detail the consequences of the government not taking action to prevent further warming, predicting the loss of thousands of lives as well as severe economic and environmental costs. 

“As the nation with the second-highest emissions of carbon dioxide from fossil fuel combustion in the world (and higher than the largest emitter, China, on a per capita basis) the policies that the United States sets into place can make a substantial difference in the conditions that future generations will face,” Thomas Sprankling, an attorney with Wilmer Cutler Pickering, wrote in the scientists’ brief. 

They continue, “This Court should exercise caution before unduly limiting EPA’s ability to enact rules that help protect the future for today’s and tomorrow’s children.” 

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