SCOTUS hears arguments on EPA authority

CHARLESTON, W.Va. — The U.S. Supreme Court heard Tuesday oral arguments related to the Environmental Protection Agency’s authority to regulate greenhouse gas emissions.

West Virginia is leading a coalition of Republican-led states and coal mining companies in the legal challenge stemming from an appellate court decision on a Trump administration policy.

The Supreme Court previously granted a review of a verdict from the U.S. Court of Appeals for the District of Columbia Circuit; the three-judge panel in January 2021 struck down the Affordable Clean Energy rule, stating the Trump administration misinterpreted the Clean Air Act and national air quality standards while drafting the regulation.

West Virginia Attorney General Patrick Morrisey has argued the decision gave the EPA broad authority to regulate emissions.

“Whatever your position is on the major question of climate change, Congress needs to settle it as opposed to unaccountable agencies,” Morrisey said outside of the Supreme Court building in Washington, D.C.

West Virginia Solicitor General Lindsay See told justices the lower court’s decision removed restrictions placed on the environmental agency.

“The D.C. Circuit gave EPA much broader power,” she argued. “Power to reshape the nation’s energy sector — or almost any other industry for that matter — by choosing which sources should exist at all and setting standards to make it happen. No tools of statutory construction support that result.”

Morrisey’s office was successful in getting the Supreme Court in 2016 to issue a stay against the Clean Power Plan, an Obama administration policy aimed at reducing emissions. The Trump administration proposed the Affordable Clean Energy rule in 2019; the second regulation provided states with more flexibility in developing emission standards.

West Virginia Attorney General Patrick Morrisey (Gage Skidmore/Flickr)

The EPA has yet to announce a new rule. According to Solicitor General Elizabeth Prelogar, officials hope to announce a policy by the end of the year and a final rule in 2023.

Prelogar told justices that petitioners have not been affected by “the status quo” and cannot claim injury from the lower court’s decision.

“Instead, what they seek from this court is a decision to constrain the EPA’s authority in the upcoming rulemaking,” she added. “That is the very definition of an advisory opinion, which the court should decline to issue.”

Prelogar added the Clean Power Plan would not have had significant consequences for states.

“The industry achieved the CPP’s emission limits a decade ahead of schedule and in the absence of any federal regulation.”

Justices asked See about how policies targeting specific sites could impact systems.

“Inside-the-fence reform can be very small, or it can be catastrophic. There are inside-the-fence technological fences that could drive the entire coal industry out of business tomorrow,” Justice Elena Kagan said. “An outside-the-fence rule could be very small, it could be very large.”

See said the EPA can achieve goals with broad regulations, but authority must be rooted in the statute.

“EPA has to focus on systems that are achievable, lead to achievable emission reductions that are adequately demonstrated,” she said. “Those are constraints that make sense for a source-specific requirement. They don’t make sense when EPA is regulated at a great, wider, nationwide level.”

The Supreme Court has a 6-3 conservative majority. Justice Stephen Breyer, a moderate liberal on the bench, will retire after the current term.

West Virginia’s congressional delegation applauded Morrisey’s effort; Sen. Shelley Moore Capito, R-W.Va., said the case centers on “congressional intent.”

“If Congress wanted EPA to have broad authority in determining how the power sector functions, it would have given it such,” the Senate Environment and Public Workers Committee’s ranking member told MetroNews in a statement.

“The issue with the lower court’s decision is that it struck down the Affordable Clean Energy (ACE) rule and interpreted the statute as giving the new administration the ability to issue overreaching regulations like the illegal Clean Power Plan. The Supreme Court needs to issue a decision in this case that clarifies that EPA cannot unfairly target states like West Virginia with illegal rules that would de facto shut down coal plants and cause significant harm in coal-producing states.”

Rep. Alex Mooney, R-W.Va., also said the EPA should have not broad regulatory authority.

“Lifelong bureaucrats with an extreme left-wing agenda should not be dictating unilateral policy from cubicles in office buildings,” he said. “Lawmakers with a direct connection to the people they represent should be making decisions on issues like the future of energy policy in the United States.”

Rep. David McKinley issued a press release thanking Morrisey for the effort to “protect our state’s coal and natural gas industry” from the effects of regulations. McKinley also tied the matter to the Russian invasion of Ukraine, saying the Biden administration must take steps to increase domestic energy production in the name of national security.

“Today’s case will define America’s energy future and I’m proud to continue the fight to defend our coal miners, their families and communities across West Virginia,” he said.

The Supreme Court is expected to issue opinions in June.

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