The Supreme Court ponders EPA’s carbon dioxide authority.

Amid the current uproar over the U.S. Supreme Court’s leaked Roe v. Wade scratchwork, it might be easy to lose sight of another ruling expected at the end of the Court’s 2021-2022 session – this on EPA’s authority to regulate CO2 emissions. The case, entitled simply West Virginia v. Environmental Protection Agency, in fact pits attorneys-general from eighteen states and representatives from some major coal producers against the U.S. government and a similar array of backers – including several of the largest electric utilities, nearly 200 members of Congress, the U.S. Conference of Mayors, and others.

Go back to Monday, February 28th of this year. That day the plaintiffs made oral arguments that the 1970 Clean Air Act only allows the E.P.A. to regulate individual power plants, not the entire power sector.

The Times coverage from February highlighted two aspects of the case.


At issue is a federal regulation that broadly governs emissions from power plants. But in a curious twist, the regulation actually 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.

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 J. Trump took office, he instituted a new plan that was effectively the same as no regulation. But on the last full day of Mr. 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 E.P.A.’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.”

Second, the ramifications of the case may extend well beyond the purview of the EPA and environmental issues per se. The Times coverage notes:

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 Patrick Morrisey, the attorney general of West Virginia, speaking at an event in Washington earlier this month, ahead of 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.”…

…Legal experts on both sides said that 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 Mr. 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’s 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.”

Presumably, despite the current distractions and upheaval, the Court remains hard at work on the internal deliberations that will lead to its ruling in West Virginia.

As the Times coverage emphasizes, it is understandably a bit unnerving to contemplate leaving decisions on such consequential, complex, value-laden issues as climate change in the hands of a relative few, no-matter how high minded, or carefully selected to be representative of the broader society. And these days our polarized society extends distrust to the institution of the Supreme Court itself. This morning’s Washington Post reports that environmental lawyers are apprehensive. They note that the Court’s apparent dismissive attitude towards precedent and conservatives’ general sense that government agencies tend to overreach together bode poorly for the climate change outcome. They sense that the Court may have short-term, opportunistic interest in using its current favorable makeup to make big changes now that will override any concerns that the Court will appear politicized. Environmental lawyers even express the fear that Massachusetts v. EPA, the 2007 case that established the EPA’s authority to regulate greenhouse gases under the Clean Air Act, might itself ultimately be overturned.

Sobering indeed. But perhaps readers caught Mr. Adler’s use of the word “courts” (plural). The April 23rd print edition of The Economist ran an article entitled Habeas Carbon that examined the increasingly important role of courts (domestic-US and worldwide), greatly accelerated by the Paris agreement of 2015. The article points out that the trend is likely to be sustained, for three reasons: numerous national commitments to the Paris agreement provide more targets for litigation; that early litigation has been successful; and increasing numbers of lawyers and activists, fed up with the slow pace of governmental response and street-level activism, are entering the legal fray. It’s encouraging to know that the climate change challenge is prompting multiple, diverse legal experiments, of every flavor. Early detection of success and failure in these experiments can accelerate the identification, refinement, and scale-up of effective legal- and policy-based approaches to the climate change question.

Further, these legal efforts are complemented by trends in another realm. Another article in that same print issue of The Economist points to a rise in activist-stockholder tweaking of corporate governance, at all levels, global, and small. For various reasons, corporate activism is growing more effective than it has been in the past. In response, corporate proxy battles are multiplying and at the same time increasingly focusing on “corporate purpose,” with environmental issues high on the agenda. Turns out as well, that for purely-business- as well as nobler reasons, private enterprise would like legal and policy clarity on environmental policies broadly. Within limits, corporations are more interested in long-term stability and clear-headed recognition of the need to decarbonize than they are about the policy particulars. That’s one reason many corporations are siding with the U.S. government in the West Virginia case.

The emergent properties of these trends are hard to discern, hard to control, and include negative as well as positive possible outcomes. But they also hold potential for rapid improvement. The world’s populations – all of us – are getting a great civics lesson. We’re debating issues that matter. Far better than obliviousness and ignorance. Far more reason for hope than despair, or even vexation.


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