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Supreme Court will hear biggest climate change case in a decade

The US Supreme Court building in Washington on Jan. 7.Al Drago/Bloomberg

WASHINGTON — In the most important environmental case in more than a decade, the Supreme Court on Monday will hear arguments in a dispute that could restrict or even eliminate the Environmental Protection Agency’s authority to control the pollution that is heating the planet.

A decision by the high court, with its conservative supermajority, could shred President Biden’s plans to halve the nation’s greenhouse emissions by the end of the decade, which scientists said is necessary to avert the most catastrophic impacts of climate change.

“They could handcuff the federal government’s ability to affordably reduce greenhouse gases from power plants,” said Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University. The power sector is the second-largest source in the United States of the carbon emissions that are driving climate change.

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But the outcome could also have repercussions that stretch well beyond air pollution, restricting the ability of federal agencies to regulate health care, workplace safety, telecommunications, the financial sector, and more.

“If the court were to require the EPA to have very specific, narrow direction to address greenhouse gases, as a practical matter it could be devastating for other agencies’ abilities to enact rules that safeguard the public health and welfare of the nation,” said Richard Lazarus, a professor of environmental law at Harvard. “It would restrict the enactment of regulations under any host of federal statutes — OSHA, the Clean Water Act, hazardous waste regulation. In theory, it even could limit the Fed’s authority to set interest rates.”

At issue is a federal regulation that broadly governs emissions from power plants. But in a curious twist, the regulation never took effect and does not currently exist.

The legal wrangling began in 2015 when President Barack Obama announced the Clean Power Plan, his chief strategy to fight climate change. Citing its authority under the Clean Air Act, the Obama administration planned to require each state to lower carbon dioxide emissions from the electricity sector — primarily by replacing coal-fired power plants with wind, solar, and other clean sources. Electricity generation is the second-largest source of greenhouse gas emissions in the United States, behind transportation.

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But the Clean Power Plan was never implemented. After a barrage of lawsuits from Republican states and the coal industry, the Supreme Court put the program on hold. Once President Donald Trump took office, he instituted a new plan that was effectively the same as no regulation. But on the last full day of Trump’s presidency, a federal appeals court found that the Trump administration had “misconceived the law” and vacated the Trump plan. That cleared the way for the Biden administration to issue its own regulation, which it has yet to do.

It is highly unusual for the Supreme Court to take up a case that revolves around a hypothetical future regulation, legal experts said.

“Trying to figure out the contours of EPA’s authority to regulate greenhouse gases when there’s no regulation being defended is just kind of a weird thing for the court to consider,” said Jonathan Adler, a law professor at Case Western Reserve University. “I was surprised when they took the case.”

The plaintiffs in the case, West Virginia v. Environmental Protection Agency, want the high court to block the kind of sweeping changes to the electricity sector that defined the Obama Clean Power Plan.

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Instead, Republican attorneys general in 18 states and some of the nation’s largest coal companies will argue that the 1970 Clean Air Act limits the EPA to dictate changes only at individual power plants, not across the entire power sector.

Conservatives have long argued that the executive branch routinely oversteps the authority granted by the Constitution in regulating all kinds of economic activity.

“This is really about a fundamental question of who decides the major issues of the day,” said West Virginia Attorney General Patrick Morrisey, speaking at an event in Washington this month, before his appearance before the Supreme Court on Monday. “Should it be unelected bureaucrats, or should it be the people’s representatives in Congress? That’s what this case is all about. It’s very straightforward.”

Others maintain that Congress delegated authority to the executive branch to broadly regulate air pollution under the Clean Air Act. The legislature makes the law; the executive implements it through regulation, they say.

“Just because the opponents are particularly shrill in their objection doesn’t change the fact that this regulation is no different than hundreds of regulation that the agencies have produced since the New Deal — just as Congress intended them to do,” said Richard Revesz, who teaches environmental law at New York University and filed a brief in support of the administration.

With the stakes high, each side has drawn legal backing from an array of supporters. Significantly, many of the nation’s largest electric utilities — the companies that would be subject to environmental regulation — have filed legal briefs in support of the government. They are joined by 192 members of Congress, the US Conference of Mayors, climate and public health advocates, and tech giants such as Apple, Google, and Netflix.

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Lining up behind the plaintiffs are 91 members of Congress and some of the nation’s most powerful conservative groups, including Americans for Prosperity Foundation, a group affiliated with the libertarian Koch family.

Morrissey suggested that he was encouraged by the 6-3 split on the court between conservatives and liberals, including a trio of Trump appointees. “We have optimism about the result we’re going to get,” he said.

Biden administration officials and environmentalists concede that given both the composition of the court and its recent decisions against federal rules, such as blocking a federal vaccine mandate and ending Biden’s eviction moratorium, Morrissey’s optimism is probably well-founded.

“This is certainly a court that is not friendly to government action,” said David Doniger, a lawyer for the Natural Resources Defense Council. “But there are some reasons why we have a fighting chance.”

Legal experts on both sides said they see it as the first of many cases that address the growing authority of federal agencies at a time when a gridlocked Congress has failed to pass new laws on issues ranging from climate change to immigration to gun control.

“Congress gets the fancy pins and nice offices because they’re supposed to legislate, but they don’t do it,” said Adler, the professor at Case Western Reserve University. “There has been a long trend of the executive branch trying to fill the gap left by Congress' failure to act, and each administration gets more aggressive on this than the previous one. And there’s this larger question of whether the courts should be OK with that. ”

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