Climate Regulation Hinges on Case at Supreme Court

the federal government regulates greenhouse gas emissions. The case started off as a push to reinstate a Trump administration rule that governs emissions from the power sector. This rule, of course, was meant to replace the Obama administration's version, but both of those measures were ultimately scuttled by the course in one fashion or another. Now, however, this case is all the way at the Supreme Court, and it's about way, way more than just whether to reinstate a power sector

rule or not. To explain this frankly very confusing situation, I called on Jennifer Hide Jazzi, who's covering West Virginia VAPA for Bloomberg Law. She explained how the justices may use this case to overturn a landmark ruling from just fifteen years ago, and about how this all got started in the first place. So Trump's Affordable Clean Energy role was the replacement to the Obama Air Clean Power Plant which proposed more sweeping regulations for carbon emissions from power plants.

So the ACE rule shrunk the scope of that regulation to what can be limited inside the fence line of facilities rather than like a sector wide approach. So that the ACE rule was sued heavily by states, health groups, screen groups, and ultimately was tossed completely early last year, giving Biden what would have been a clean slate to craft news standards. But now this is where we get

to my confusion or misunderstand. So the case originally started as a challenge saying that the rule that was struck down should not have been struck down. The Trump administration's rule should still be in place. But it seems like it's gotten the scope of the case, it has gotten much bigger. But now that it's at the Supreme Court, what happened there and how did the scope expand? Okay, yeah, so this is where EPA and other petitioners say things

get murky and hypothetical. So this petition was filed in response to the DC Circuit striking down the use rule. But when the court did that, it also struck down the basis that states and coal companies used to challenge Obama's Clean Power Plan rule, so namely, what can be considered the best system of emission reduction under the Clean Air Act? So Trump's rule kept that baseline inside the fence line for facilities. Obama's rule called for outside the

fence line sector wide changes. So this petition is addressing that scope of regulation, trying to draw lines around what agencies have the authority to do to regulate these emissions. Meanwhile, there is no current rule on the book yet for this administration. So respondents are like, why are we suing over a rule that was never implemented and rules that

have yet to be released? Right, But now it seems like because the DC Circuit issues such as sweeping ruling, now it's being challenged at the Supreme Court, and that

sweeping ruling could sweep in the opposite direction. And it sounds like, based on what you've been reporting, and you know what the case, I guess what the briefs have been saying, we could potentially have a situation where the Supreme Court could rule in the other direction and strip the executive branch of its authority to regulate greenhouse gases full stop. What's going on here? Uh yeah, I mean that's certainly within the realm of possibility. Definitely the worst

case scenario for EPA. Massachusetts for EPA said that, you know, greenhouse gas regulations do indeed fall to that too, you know, the Environmental Protection Agency. What's an issue in this case is the scope of that authority. So what this case could potentially do is caught off administrative ability to regulate greenhouse gases in a way that actually makes a difference toward meaningful emission reductions in a country with outsized contributions

to planet warming emissions. So yeah, like mass Chuset's VPA may not get overturned. I don't think that's on the likelier end of things. You know, the worst case scenario we were talking about, but stemming regulation authority would make it harder to regulate under that authority that mass v. EPA granted. And let's talk about mass Chusetts VPA a little bit, just so we are both on the same page.

You know, that's of course a very famous decision from the Supreme Court back in two thousand and seven, and it said that the EPA not only can regularly greenhouse gas emissions, but that it must through the Clean Air Act. Is it fair to say that mass Chusetts VPA kind of laid the groundwork for the way that the federal government regulates greenhouse gas emissions throughout the entire country? Is I mean, was it that fundamental? Oh? Yeah, definitely, I

mean that's it. That case granted EPA its authority to even issue standards on greenhouse gas emissions. So I think a lot of court watchers that are really concerned about climate are watching any type of climate case GHG case that gets up to the High Court very very very closely because of that authority. And one of the things that you've been reporting on, and I think a lot of other people have been looking at, is this question of the major questions doctrine that could be a real

big issue here. And I get the sense that that's this idea, the sort of judicial philosophy that if Congress wants a federal agency to do something, it will explicitly state that in a law. It won't, you know, be vague about it is that right? Is that could I come into play here? Yeah? This is I mean, this is definitely a case that some folks are worried that are really going to bring up major questions in a

pretty major way as it were. But yeah, so it major questions is the idea that courts won't defer to an agency's interpretation of statute if Congress didn't explicitly it's particularly with issues that are of vast economic and political importance, if Congress has not explicitly given that authority. So this is you know, one of those issues that kind of falls into does the agency have authority here? Do we

give them deference on what they say? The statute says kind of thing, right, And it's important here because the agency, when it was you know, developing its its regulations, was using the Clean Air Act, was saying, you know, greenhouse gas emissions are an air pollutant, and through the Clean Air Act, we have the authority to regulate that. But of course the Clean Air Act was written in the seventies when we barely or maybe didn't know that greenhouse

gas emissions were a problem. And so I guess that's that's how the major questions doctrine comes into play here, right, right? So what are you hearing from the folks who are watching this case closely? Uh? You know, which way are they predicting that the winds are going to blow? Here? There are six Republican appointees on the Supreme Court, so I have to imagine that, you know, the petitioners here

like they're odds. I mean, I've a lot of folks I spoke to were pretty surprised they even took the petition at all, again because we don't have a rule yet, Like yeah, and you know, since the clean power plane isn't even on the playing field anymore, so the fact that they took up the authority question is is really concerning for a lot of folks, is especially anxiously watching Biden's kind of like slow waiting into meaningful climate and

climate justice policy and then in combination with a pretty stalemated Congress. And that's a good point. And I've forgot to mention that we didn't even get into this whole issue of standing, Like the petitioners here are you know, kind of read states that are you know, pro fossil fuel development, but they're trying to save a rule here that's not even on the books, Like who's what is their injury? What is how are they being harmed by

the current status quo. It's like that's that's another thing that that's an issue here, is like do they even have the right to sue? Right? And that I mean that is certainly something that's been in every respondent brief and amicus, you know, that's come out in supportive, supportive, you know, the EPA side of things. But they are saying that they will be harmed by a sort of like sector wide approach to you know, massive changing the

face of how utilities run through administrative regulation. But it sounds like the folks that you're talking to are saying that the fact that that the court even is taking up this case and is even hearing this case is itself a sign of which way they're they're gonna rule. I don't know if I can even read the tea leaves on how a justice is going to rule in

this kind of situation. I mean, I few others I spoke to, or at least, you know, in terms of possible outcomes here somewhat hopeful that this could lead to some kind of regulatory certainty or you know, move to finally put this issue to bed and just draw boundaries on what can and cannot be done in this realm. To be honest, I don't think I'm not sure what to expect here. I think people are just anxiously watching,

and some folks are pretty worried. Yeah. Finally, let's talk about what would happen if, you know, the court rules in favor of the petitioners here and strips the EPA of a lot or most or all of its climate regulatory authority. What would the future look like in that scenario? I mean, it would essentially be up to Congress to you know, regulate greenhouse gases if it should want to. I mean, am I interpreting that right? Would Congress have to sort of pass new laws to regulate greenhouse gases?

I mean yeah? I mean under the you know, EPA's worst case scenario, as we discussed before, completely worst worst case cuts off Biden's ability to regulate greenhouse gases at all, one tier down. It ties his hands pretty significantly for meaningful reductions. With Congress then in charge of picking up that slack. I think we can likely predict how that would play out. I think build back better wrangling was

pretty much our early taste of that. In other words, that that, yeah, that like Congress has no appetite to really or no ability, no consensus to pass new climate laws. Is that kind of what you're getting at. Yeah, I mean there's definitely appetite, sure among many many lawmakers, there's appetite to move forward on climate, but yeah, exactly, ability to get the job done a different story. All right, Well,

the oral arguments they're going to be really interesting. Maybe we'll get kind of a preview on where the justices are thinking and how they view this case. But until then, thank you so much Jen for coming on the podcast. And after the arguments, we'll have you back and we'll talk about how it went. Sounds good, looking forward to it. And that's it for today's episode of Parts per Billion. If you want more environmental news, check us out on Twitter.

We use it pretty easy to remember handle it, just add environment. I met David b. Schultz. If you want to chat with me, that's b as in Brian, which is actually my own name. Today's episode of Parts per Billion was produced by myself, David Bryan Schultz. Parts per Billion was created by Jessica Coombs and Rachel Dagle and is edited by Rebecca Baker and Chuck McCutcheon, and our

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