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Supreme Court conservatives set to suspend Biden administration’s climate regulations

On the same day a United Nations report found that the impacts of climate change will be even worse than we previously thought, the Supreme Court heard arguments that could significantly prevent the Biden administration from doing anything about it. topic.

The court case was brought by West Virginia and 20 Republican-led states and a group of coal companies seeking to block the Environmental Protection Agency from instituting new rules to limit carbon emissions. carbon from power plants under the Clean Air Act. On the other side is the EPA, joined by a group of states and major power plant companies, who say the agency should have the power to write new carbon emissions regulations.

The court took up this case even though the rules in question are entirely hypothetical. Nothing has yet been written or proposed. The EPA argued that the court should dismiss the case and that the petitioners should challenge the Biden administration’s rules after they are written.

The underlying question in the case is whether the Clean Air Act allows the EPA to issue regulations that govern power plant sites themselves, such as the adoption of new technologies to reduce pollution on place – known as “inside the fence” – or whether the EPA can issue industry-wide (“outside the fence”) regulations that would move power plants to high emissions to low emission energy sources.

Climate activists gather outside as the Supreme Court hears a challenge to the federal government’s ability to regulate carbon emissions.

Leigh Vogel via Getty Images

Much of Monday’s arguments revolved around whether the court should use what’s known as the major issues doctrine to strike down broadcast rules that have yet to be proposed. This doctrine purportedly states that agencies cannot pass regulations of “broad economic and political significance” without direct delegation to do so by Congress. Over the past decade, court conservatives have developed the major issues doctrine into a tool to constrain the federal administrative state, even though it lacks grounding in the actual history of Congress and its dealings with agencies. rule writers.

If deployed here to invalidate a rule that has not even been written yet, it would represent an escalation of the Conservative court’s hostility to executive regulation and threaten to upend the judicial process of regulatory review.

The court’s six-member conservative bloc appeared skeptical of the EPA’s arguments in defense of allowing the administration to write rules on carbon emissions and repeatedly questioned lawyers on both sides on the issue whether the major issues doctrine could or should be used in this case.

West Virginia Solicitor General Lindsay See argued that the regulations that determine “what the electricity industry as a whole should look like” constitute a “new” and “transformative power” that raises major questions about Doctrine. While United States Solicitor General Elizabeth Prelogar argued that the major issues doctrine should not only be raised for a settlement that has not even been drafted, but also because the court’s previous precedents identified carbon emissions as pollution that the EPA could regulate under the Clean Air Act.

Chief Justice John Roberts noted in questioning Prelogar that “there is some disagreement about how to apply” the doctrine. Roberts wanted to know why the court shouldn’t first examine the significance of the regulation “upfront” to determine if it’s “a bit surprising” that the agency is taking this regulatory action before considering the actual impact of the regulation itself. As examples, Roberts pointed to cases where the court struck down the Food and Drug Administration’s attempt to regulate tobacco in the 1990s and the recent moratorium on evictions imposed by the Centers for Disease Control and Prevention during the COVID-19 pandemic.

Supreme Court conservatives set to suspend Biden administration’s climate regulations
The conservative six-member Supreme Court bloc could undo any climate change mitigation efforts by the executive branch in West Virginia v. EPA.

ERIN SCHAFF via Getty Images

The problem with this, Prelogar argued, is that in every previous case the court actually had a settlement to question with any consideration of the matter “upfront”, but here the court is hearing arguments in a case where there are no new regulations to judge the costs or the magnitude of the impact.

West Virginia v. EPA emerges from the ashes of the Obama administration’s Clean Power Plan, a 2015 regulation issued by the EPA to limit carbon emissions from power plants. These regulations were scrapped after a 2016 Supreme Court ruling temporarily halted them and the Trump administration later repealed them and replaced them in 2019 with regulations much more favorable to coal companies. Trump’s rule on America’s clean energy was short-lived, as the DC Circuit Court of Appeals overturned it in January 2021. The group of GOP-led states and coal companies appealed of that ruling in the Supreme Court around the same time the Biden administration said Obama’s clean energy plan was over, so he would be drafting new carbon emissions regulations.

The West Virginia petitioners and coal companies argue that Obama’s clean energy plan was reinstated when the appeals court struck down Trump’s U.S. clean energy rule. The court can then strike down Obama’s regulations to tie Biden’s EPA hands in drafting new carbon regulations, they argue. But the Biden administration said the Clean Power Plan was not resurrected by the appeals court and, Prelogar said, it would likely take between one and two years to propose and implement new regulations.

The lack of real regulations for the court to adjudicate may not matter to the court’s conservative bloc, as it has indicated increased opposition to government regulation since it was extended to six members after Ruth’s death. Bader Ginsburg and his replacement by Judge Amy Coney Barrett in 2020.

Judge Samuel Alito suggested during oral argument that the EPA’s regulation of carbon emissions was more like an effort to “regulate industrial policy” than the pollution emissions authorized by the Clean Air Act. He further noted that if you “if you take the climate change arguments seriously,” that “it’s a matter of survival,” then there should be no reason to believe that “the EPA can’t not even go much further than he did in the [Clean Power Plan].”

Prelogar told Alito that there are limits in the Clean Air Act to the regulations the EPA can impose on power generation. But his statements underscored the growing hostility to regulation from court conservatives.

While West Virginia and the coal companies have said they don’t think they need the major issues doctrine to win, conservatives have recently relied on it to repeal major regulations such as the vaccine rule or the Occupational Safety and Health Administration test and CDC rule. eviction moratorium.

With West Virginia Democratic Sen. Joe Manchin’s failure to back Biden’s climate agenda blocking legislative action, a decision to roll back executive branch regulations aimed at mitigating carbon emissions would further accelerate the catastrophic timeline envisioned in the report. Monday’s IPCC.


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