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The Supreme Court case that could upset environmental protection efforts

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Next month, the Supreme Court will hear oral argument in a case involving an Obama-era powerhouse rule that is no longer in effect and never really was. The Court has agreed to hear from so many high profile cases this term, on topics ranging from abortion to gun rights to vaccine warrants, that this one – West Virginia v. Environmental Protection Agency – has received relatively little attention beyond legal circles. But its potential ramifications run deep. At a minimum, the court’s ruling on the case risks making it harder for the Biden administration to reduce greenhouse gas emissions. The decision could also go much further and hamper the administration’s efforts to protect the environment and public health.

West Virginia v. EPA “may well become one of the most important environmental law cases of all time,” Jonathan H. Adler, Case Western Reserve University law professor and leading Conservative commentator, written on legal blog the Volokh conspiracy. Or, like Ian Millhiser Put the, for Vox, “West Virginia is a monster of a case.

The case has a long and complicated history. In 2015, the Obama administration released what was called the Clean Power Plan, aimed at reducing CO emissions.2 emissions from power plants. The plan was based on the Clean Air Act, which instructs the EPA to determine the “best system to reduce emissions” for a given pollutant. The EPA has decided that in the case of CO2, the “best system” involved not only modernizing the equipment of individual power plants, but also changing the way electricity is produced: to comply with regulations, some coal-fired plants would have had to shut down or switch to combustion. low emission natural gas. Before the plan could be implemented, the Supreme Court, in response to a lawsuit brought by more than two dozen Republican-led states, issued a stay. The 5 to 4 vote was announced just days before Judge Antonin Scalia died. It was the first time that the Court blocked a settlement before it reviewed by a federal appellate court.

Under Donald Trump, the EPA ditched the Clean Power Plan and replaced it with what it called the Affordable Clean Energy Rule, or AS. AS called on coal-fired power plants to install new equipment to increase their efficiency, an approach that some researchers have concluded would actually have increased greenhouse gas emissions by burning more coal, overall. In issuing the regulations, the Trump administration insisted that the EPA did not have the authority to publish the Clean Power Plan in the first place. Democratic-led states sued the Trump administration, and on the eve of Joe Biden’s inauguration, the United States Court of Appeals for the DC Circuit overturned AS, saying it was based “on a misreading of the Clean Air Act”. The air quality law, the court said, do give the EPA wide latitude in deciding what would be the “best system”.

When the Circuit Court had rejected AS, the objectives of the Clean Power Plan – to reduce emissions from the electricity sector by 32% compared to 2005 levels – had already been achieved. This happened in large part because utilities engaged in precisely the type of fuel change that the plan was intended to encourage. The Biden administration has said it will not revive the plan; instead, it would propose new rules. Before these could be written, or even actually designed, a collection of coal companies and Red States, including West Virginia, petitioned the Supreme Court to hear an appeal of the DC Circuit case. Since neither the Clean Power Plan nor AS was in force and the new rules had not been drafted, most Supreme Court observers expected the petitions to be dismissed. (Adler called them “Longshots. But then, in October, the court announced that it would hear the cases, all merged into one.

At the center of the consolidated case is the question of which interpretation of the EPA’s authority under Section 111 (d) of the Clean Air Act is correct: that of the Obama administration or that of Trump. – or, if you prefer, that of the attorneys general of the blue states or that of the red administration. States’. But the case, which drew amicus briefs from right-wing Death Star think tanks, could become the start of something much bigger. Vickie Patton, general counsel for the Environmental Defense Fund, one of many interviewed in the case, said the petitioners “are asking the court to do considerable damage to all kinds of ways in which we protect the human life: by regulating food safety, automobile safety, deadly pollution, etc. She added, “There is a huge stake for the American people.”

The applicants and their “friends” filed their memorials in the case last month. (Surprisingly, several large utility companies, including Con Ed and National Grid, have joined with environmental groups, such as EDF, and blue states, such as New York and California, to oppose the petitioners. .) Many briefs go way beyond the question of how to read Section 111 (d) and appear to target what former Trump adviser Steve Bannon called the “deconstruction of the administrative state.” (One of the briefs was co-authored by John Eastman, the attorney who wrote the memo for Trump’s legal team that urged Vice President Mike Pence to overturn the 2020 election results.) Several cite what has become the “big questions” doctrine, which is popular among conservative jurists, including Justices Brett Kavanaugh and Neil Gorsuch. “It’s hard to imagine a better illustration of the need for the Big Questions Doctrine than this case,” said a brief filed by America’s Power, a group formerly called the American Coalition for Clean Coal Electricity.

Major issues doctrine states that an agency cannot issue a settlement that would have significant political or economic ramifications unless it has received explicit instructions from Congress to do so. Major issues are a challenge to the dominant approach, known as the Chevron Doctrine, which is named after one case – Chevron USA, Inc. v. Natural Resources Defense Council – which was decided by the Supreme Court in 1984. Chevron believes that, if a law is silent or ambiguous on one point, the courts should defer to the interpretation of an executive agency, as long as the interpretation is reasonable.

The Chevron Doctrine is central to government regulation as we know it: Often, federal rules are written in response to general directives from Congress to, for example, protect air quality or worker safety. The Biden administration’s mandate that companies with 100 or more employees require workers to be vaccinated against COVID or tested weekly, for example, is based on the Occupational Safety and Health Act 1970. For obvious reasons, the law never mentioned COVID. Last week, when the Supreme Court heard arguments in two cases challenging the authority of the Biden administration to issue vaccination warrants, Justices Kavanaugh and Gorsuch raised the doctrine of major issues. Critics of the Big Questions point out that if the Court were to favor this doctrine and abandon or downgrade Chevron – a move which, after last week’s arguments seems increasingly likely – it would in fact rob the executive branch of power. and hand it over to itself. “At a time when the Conservatives are likely to control the court for at least a generation, they do not need to win parliamentary or presidential elections to ensure a perpetual veto on federal politics,” Hannah Mullen, lawyer in the Georgetown Law Court of Appeal. Immersion clinic, wrote recently on the Legal Balls & Strikes website.