SCOTUS heard this GHG case 2/28/22

From PRX at the University of Massachusetts, Boston this is Living on Earth.

CURWOOD: I’m Steve Curwood. Congress has yet to enact comprehensive climate legislation, so if the Biden administration wants to set America on track for net zero carbon emissions by 2050 it will have to rely on executive orders and regulations. According to a landmark ruling by the US Supreme Court in 2007 CO2 is an air pollutant that the Environmental Protection Agency must regulate. But so far EPA efforts to actually curb the large amounts of global warming gases from power plants have gotten snarled in litigation. And just the other day a more conservative Supreme Court heard arguments in a case that could tie the hands of the EPA, even though those rules don’t even exist. Joining me now to discuss is Pat Parenteau, Professor at the Vermont Law School and former EPA Regional Counsel. Welcome back to Living on Earth, Pat!
>>> PARENTEAU: Thanks, Steve, good to be with you.

CURWOOD: So, Pat, I’m confused. Conservatives have said for a long time that judges shouldn’t be activists. But to what extent is this so-called conservative Supreme Court changing along those lines?
>>> PARENTEAU: Oh, right. I mean, they’re reaching out for cases that in the past, the Supreme Court would never take. The big case on the calendar of the Supreme Court this year, the West Virginia versus EPA case involving regulation of greenhouse gases from power plants, for example, there is no rule on the books right now regulating these emissions. So the Supreme Court has taken review of an abstract question of what is EPA’s authority to regulate these plants before the Biden administration has even adopted a rule! It’s the very definition of an activist court.

CURWOOD: So West Virginia v. the Environmental Protection Agency, has been called by some as the biggest climate change case in a decade. What makes it such a big deal?
>>> PARENTEAU: Well, it certainly is since Massachusetts v. EPA. This decision, could you know, not only limit EPA’s authority under the Clean Air Act. But one of the doctrines is something called the major question doctrine. It’s a rule that the court and the conservative members would view as kind of a new assertion of authority that an agency hasn’t previously used under a provision of a law like the Clean Air Act, that’s been on the books since 1970. But it’s never been used for anything as big as climate, of course, because we weren’t thinking about climate change in 1970, we should have been, but we weren’t. And this doctrine is so malleable, that you know, you can apply it to any environmental rule. I mean, most environmental rules, because they’re addressing big problems — air quality, water quality, loss of wetlands, loss of endangered species — they’re dealing with really big problems that do have large economic and social consequences. Some of those consequences are negative from the standpoint of if we don’t deal with the problems they’re gonna create, you know, economic harm, and other kinds of harm. And if we do deal with them, it’s going to cost money to deal with them. But if we don’t deal with them sooner rather than later, the cost could be much greater, and so on. The problem is when the court applies the major question doctrine, guess what? The result is almost every single time, in fact, all the cases that I’m aware of is the agency regulation is struck down. It’s a deregulatory doctrine. It’s used when the court believes the agency has exceeded its authority, and is gonna strike down the rule and require that Congress explicitly authorize the specific action that the agencies want to take. And that’s just a recipe for disaster, frankly, for environmental law. We have to be much more adaptive than that.

CURWOOD: This case that we’re talking about is called West Virginia v. the EPA. What’s the backstory of this case, and explain in some detail the EPA regulation that it’s talking about.
>>> PARENTEAU: After the Massachusetts v. EPA decision, EPA under the Obama administration adopted rules to regulate power plants under the Clean Air Act. And the plan that EPA came up with was a very flexible, sort of menu of options. Option one was make these plants run more efficiently and burn less coal or less gas. The second step of the Obama plan was use your ability to use more reliance on, on gas and certainly more reliance on wind and solar, use the flexibility the grid gives you to rely more on cleaner sources of energy. And then number three, put more investment in new renewable sources of energy and gradually bring more green energy onto the grid over time. That’s the Clean Power Plan. Now, that plan never took effect. The Supreme Court stayed it, even before the lower courts had ruled on whether it was lawful or not. And the Supreme Court in a unprecedented action, another activist step by the five conservatives that were on the court at that time, when Justice Scalia was there — this was his last vote before he passed away shortly thereafter. So the Clean Power Plan never took effect.

The Trump rule came on, they repealed the Obama plan. They replaced it with something called the Affordable Clean Energy (ACE) plan, which wouldn’t have done very much at all to reduce emissions. The estimate was maybe it would reduce it by 1%. And it would rely strictly on efficiency measures, none of these other strategies of relying more on gas or bringing more green energy on, onto the grid. And not even allowing trading, emissions trading, the cap and trade approach. That ACE rule was struck down by the DC Circuit. And that decision by the DC Circuit is technically the one that has is now being, quote, “reviewed” by the Supreme Court. But the important point here is, there is no rule on the books. The ACE rule is not on the books. The Obama Clean Power Plan is not on the books. There’s no rule today, nobody’s required to do anything right now. And yet, the Supreme Court has said, we’re gonna to review whether the Clean Air Act gives EPA the authority to do all of the things that it might like to do to find ways to reduce these emissions in the most cost effective way possible.

CURWOOD: So I’m scratching my head about another thing involving this case, Pat, and that is that many constituents of the electric power industry have supported this approach. So why did West Virginia sue on this rule that doesn’t actually exist? And why did the high court take it up?
>>> PARENTEAU: I have to say, West Virginia has led the charge from day one against EPA’s authority. I mean, West Virginia, was even arguing EPA had no authority whatsoever to regulate emissions from coal fired power plants. And obviously, West Virginia is a major coal state, you get that. But it’s frankly more ideological than that. All of the challengers to the Clean Power Plan, and that have appealed to the Supreme Court, they all resent EPA giving them directions on how to transition the energy source. They’re not taking any actions on their own. They could be doing that, but they’re not. But they’re also not supporting what EPA is trying to do. So there’s no other way to describe this than that. It is a political fight. And it’s about states versus EPA, and who’s in charge, and so forth. And it’s not rational.

CURWOOD: So Pat, how do you read the justices? How do you think this is going to be decided based on what you heard during the oral arguments at the Supreme Court the other day?
>>> PARENTEAU: So it was a very active bench. The argument went well over the time that was allotted, almost all the justices participated. And the government, through the Solicitor General, made a very strong argument that the court really didn’t have jurisdiction over the case at all, partly because there’s no rule on the books to review. But even more importantly, because there was no injury to the petitioners: the states and some of the coal industry that were co-petitioners. And that’s because there’s no rule on the books, nobody has to do anything at this point. What they’re arguing, the petitioners, is, well, we can’t trust the Biden administration when they say they’re not going to revive the Clean Power Plan. They might. They just might do that. So because they might do that the case should stay alive. That’s a really weak, pitiful, frankly, argument. I mean, an environmental group making an argument like that would be tossed out on their ear. But this court, my first prediction is, they’re not going to dismiss the case. They’re not going to stay their hand the way they should and wait for EPA’s rule. They’re going to issue a decision. What’s the decision going to be? There’s several possibilities. For sure, I think, they’re going to say a lot of bad things about the Clean Power Plan. Justice Kavanaugh, when he was on the DC Circuit, heard arguments challenging the Clean Power Plan, and he showed his cards very clearly. He would use the major question doctrine to strike down the Clean Power Plan if in fact it was presented to the court. So we can be sure the court is going to be very negative about EPA’s authority to require shift to renewable energy, wind or solar or anything else. The real question for me is, are they going to buy into this argument that EPA can only regulate inside the fence line? What it means is, you can only regulate at individual sources. I’m not sure what the court’s going to do on that. Kavanaugh, you know, was asking a lot of hard questions about whether that made sense. The government, the Solicitor General, who was terrific, she pointed to the fact that the Clean Power Plan, not only was it never in effect, the goals of the Clean Power Plan have already been exceeded. The industry itself, because of the major transformations underway in the energy sector, have already exceeded the 30% reduction in emissions that the Clean Power Plan had established. So, you know, she made an incredibly powerful argument, I heard, that this major question doctrine, which a lot of us are really concerned about, really doesn’t apply here. She just might be able to get Justice Roberts, maybe Justice Barrett, even, and who knows, maybe even Justice Kavanaugh, at least to agree that the major question doctrine doesn’t oust EPA of authority to shape a rule. Maybe a rule that doesn’t require transition to renewable energy, but maybe a rule that at least allows things like emissions trading and averaging, which would still accomplish a lot of reduction.

CURWOOD: Pat Parenteau is a Professor of Environmental Law at the Vermont Law School and former EPA Regional Council. Pat, thanks so much today for our discussion.

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See Also: The Supreme Court Case That Could Upend Efforts to Protect the Environment Elizabeth Kolbert, The New Yorker Magazine, January 10, 2022

The potential ramifications of West Virginia v. Environmental Protection Agency are profound. The Supreme Court heard oral arguments in a case involving an Obama-era power-plant rule that’s no longer in effect, and never really was. The Court has agreed to hear so many high-profile cases this term, on subjects ranging from abortion to gun rights to vaccine mandates, that this one — West Virginia v. Environmental Protection Agency — has received relatively little attention beyond legal circles. But its potential ramifications are profound. At a minimum, the Court’s ruling on the case is likely to make it difficult for the Biden Administration to curtail greenhouse-gas emissions. The ruling could also go much further and hobble the Administration’s efforts to protect the environment and public health.

West Virginia v. E.P.A. “could well become one of the most significant environmental law cases of all time,” Jonathan H. Adler, a law professor at Case Western Reserve University and a prominent conservative commentator, wrote on the legal blog the Volokh Conspiracy. Or, as Ian Millhiser put it, for Vox, “West Virginia is a monster of a case.”

Most WV residents care about the future

TRUMP vs. EARTH

From the Essay by Amy Davidson, The New Yorker Magazine, April 10, 2017

He said that his order puts “an end to the war on coal.” In reality, it’s a war on basic knowledge of the harm that coal can do.

In late 2006, President George W. Bush’s Environmental Protection Agency argued before the Supreme Court that it did not want to regulate greenhouse gases, and that no one could make it do so. It certainly had no wish to accede to the desires of Massachusetts, which, with eleven other states, had sued the E.P.A. for failing to establish guidelines on emissions of carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons. The states pointed to the agency’s charter, under the Clean Air Act, which instructs it to regulate chemicals released into the air “which may reasonably be anticipated to endanger public health or welfare.” They asked why the E.P.A., which had refused even to consider whether greenhouse gases fell into that category, thought that it could ignore the law.

The Court, in a landmark 5–4 decision, written by Justice John Paul Stevens and issued ten years ago this week, agreed with the states. As a result of that ruling, the E.P.A. began the formal process of looking at the science documenting the risks posed by greenhouse gases, and recognized that those emissions had contributed to a public-safety crisis affecting not just the nation but the planet. The E.P.A.’s resulting “endangerment finding,” as it is known, was issued in 2009, in time for Barack Obama’s Presidency. It became the immediate object of conservative scorn and of furious efforts in Congress and the courts to invalidate it, but it held up, and formed the basis for new standards on auto emissions and for Obama’s Clean Power Plan, issued in 2015. More than that, the finding was an assertion of the principle that politicians cannot entirely ignore either science or the rule of law.

We now have, in Donald J. Trump, a President who shows disdain for both. Trump’s lack of interest in climate change as anything other than fodder for conspiracy theories involving Chinese hoaxers reached its fullest expression last week, in a “Presidential Executive Order on Promoting Energy Independence and Economic Growth.” The order asks every agency of the federal government to review its rules and to purge them of measures that inconvenience the fossil-fuel and nuclear-power industries. In particular, it directs the E.P.A. to rewrite the Clean Power Plan, which had called for, among other things, the replacement of old and dirty coal-burning plants. The plan would, it was projected, result in eight hundred and seventy million fewer tons of carbon pollution released into the atmosphere, as many as thirty-six hundred fewer premature deaths in the United States between now and 2030, and ninety thousand fewer asthma attacks in children.

President Trump said that his order puts “an end to the war on coal.” In reality, it is a declaration of war on the basic knowledge of the harm that burning coal, and other fossil fuels, can do. Indeed, it tells the government to ignore information. The Obama Administration assembled a working group to determine the “social cost” of each ton of greenhouse-gas emissions. Trump’s executive order disbands that group and tosses out its findings. Scott Pruitt, the new E.P.A. administrator—who, as attorney general of Oklahoma, had joined a lawsuit attempting to undo the endangerment finding—announced that the agency was no longer interested in even collecting data on the quantities of methane that oil and gas companies release.

The order also revokes several of President Obama’s executive orders and memorandums. One of them, “Preparing the United States for the Impact of Climate Change,” sought to remove regulations that deterred private industry from responding to climate change in innovative ways; another asked the military to assess the threats posed by climate-induced upheaval abroad—wars, famines, flows of refugees. Trump further called for a scrubbing of any reports or rules that might have developed in response to those documents, and thus any insights that might have been gleaned from them. He chooses to cast such worries aside at the Winter White House, Mar-a-Lago, even as that property sinks into the rising sea, a process that has begun and, by many scientific estimations, will result in its grounds becoming one with the Atlantic during Barron Trump’s lifetime.

For all the talk of American greatness, Trump’s actions regarding climate change represent a historic abdication of leadership. The Clean Power Plan was important not only for its domestic effects but because it was a down payment on America’s commitments under the Paris climate accords. If fully implemented, the plan would have got the United States about halfway to the goal of reducing greenhouse-gas emissions by a quarter, from their 2005 levels, by 2025. Without the plan, the goal will almost certainly not be reached, despite the pledges of several states and even some large energy concerns to adopt greener technology. Meanwhile, China, in a reversal, is proclaiming itself to be the champion of Paris, if only as a way of enhancing its own world-leader credentials.

Trump says that he is still deciding whether to formally withdraw from Paris, but it is now clear that if he doesn’t it will only be because he can’t be bothered with the paperwork. The United States government’s meaningful participation in the fight against climate change appears, at least for the next few years, to be at an end. The Friday before issuing the order, in what looked like an attempt to cheer up Republicans about their health-care defeat, Trump granted a permit for the completion of the Keystone XL Pipeline, which the Army Corps of Engineers had earlier blocked.

Much of this will end up in the courts, as yet another set of Trumpian actions that make the expected confirmation of Neil Gorsuch to the Supreme Court so consequential (and the abandonment of Merrick Garland so tragic). Gorsuch’s mother was a notably anti-environmentalist head of the E.P.A., under Ronald Reagan, and Gorsuch would take the seat formerly occupied by one of his judicial idols, Antonin Scalia, who was in the minority in Massachusetts v. E.P.A. (In his dissent, Scalia grumpily wondered why the agency couldn’t just say that climate-change science was unsettled, and leave it at that.) The Trump Administration has already proposed defunding the E.P.A. by thirty-one per cent and cutting its staff by twenty per cent, raising questions about how it can fulfill its most basic responsibilities. Soon enough, the Supreme Court may be asked, again, what it means for the E.P.A. to be derelict in its duties, and for America to have a President whose main mode of action is reckless endangerment. ♦

>>> Amy Davidson is a New Yorker staff writer. She is a regular Comment contributor for the magazine and writes a Web column, in which she covers war, sports, and everything in between.