Supreme Court to hear case challenging the scope of EPA’s climate powers

The Supreme Court is set to hear oral arguments Monday in a case that could limit the Environmental Protection Agency’s (EPA) ability to regulate climate change. 

At issue in the case is the extent to which the agency can pursue climate regulations that have broad impacts on areas such as the power sector. 

Two coal companies, as well as a group of states led by West Virginia and North Dakota, are challenging a lower court ruling that tossed a Trump-era rule governing power plants. 

That Trump rule loosened regulations surrounding climate change when compared to the Obama-era Clean Power Plan (CPP), which sought to reduce releases of greenhouse gases through improved efficiency measures, as well as the adoption of more natural gas and renewable energy, as opposed to coal. 

The Supreme Court stayed that plan, preventing it from taking effect, in 2016. And the Trump administration replaced it with the Affordable Clean Energy (ACE) rule, which still sought efficiency improvements, but excluded the switch to cleaner fuels. 

CPP was expected to be significantly more impactful than ACE, reducing carbon dioxide emissions by 415 million short tons by 2030 compared to its successor’s ​​11 million short tons.

Neither rule is currently in place, as a court also struck down the Trump rule last year. 

But as the Biden administration is working on its own regulations for power plants, the states and coal companies are seeking to limit its authority to do so. 

They have argued that a key provision in the Clean Air Act only allows the EPA to regulate the pollution sources themselves, rather than setting broader standards that could change the makeup of the country’s power supply.

“They have the ability to regulate a source, and so for instance that could be the coal-fired power plant, and that could be for heat efficiencies or items within the power plant,” West Virginia Attorney General Patrick Morrisey told The Hill in an interview.

But, he added, they can’t “go so far afield” and create a system that could “impact consumer demand or force rewrites of the power grid.”

The government disagrees, arguing that the law’s call for a “best system of emissions reduction” enables it to regulate both within the power plant and outside its boundaries. 

It said in a court briefing that the definition of the word system “encompasses inside- and outside-the-fenceline measures alike.”

And the government and its environmentalist allies argue that since neither the Obama rule nor the Trump rule is in place, there’s nothing to sue over. 

“’Seinfeld,’ they used to say, ‘This is a show about nothing.’ In some ways, this case is about nothing,” said David Doniger, senior strategic director of the Natural Resources Defense Council’s climate and clean energy program.

“Big arguments about two rules that are not in effect and don’t do anything. The first step is to decide whether they were right to take the case in spite of the fact that there’s no rule in place,” Doniger said. 

But Morrisey argues that policy similar to the Obama administration’s is “bound to be repeated.”

For his part, EPA Administrator Michael Regan said he would use a “clean slate” when asked if the administration would pursue a “new version of the Clean Power Plan” during his confirmation hearing last year.

“It’s my understanding that we have to take a look at what [were] the plans for the Clean Power Plan and what were the plans for the ACE rule. The reality is — is that it presents a significant opportunity for the Environmental Protection Agency to take a clean slate in how do we best move forward,” Regan said at the time.

“There are lots and lots of, I would say, examples of success and failure that we’ve seen in past tries,” he added. 

Regardless, the case could have implications for how the EPA pursues the power plant regulation going forward. 

“If they got a ruling that EPA can do no more than the ACE rule, then that would be a really damaging outcome, it would mean they could still do something but it’s trivial,” Doniger said, adding that he believes this would be unlikely. 

“They may end up ruling that some parts of the Clean Power Plan may have been beyond EPA’s authority,” he added. “We won’t know until a ruling comes out how constricting it is.”