Today we visit that big climate change case at the Supreme Court that we told you about a few weeks ago. We just got an insight into how the justices are thinking about it and does the EPA actually have some reason for optimism. Stay tuned, Hello, and welcome back once again to Parts Pervilion, the environmental podcast from Bloomberg Law. I'm your host, David Schultz. So a few weeks ago we gave you the pregame show. Now here's the postgame show.
Today we're gonna be talking about West Virginia v. EPA, the Supreme Court case that challenges the agency's power to regular greenhouse gases from the energy sector. A few weeks ago, we had Bloomberg Law reporter Jennifer hit Jazzy on to talk about what this case was about and why it potentially threatens the landmark Massachusetts v. EPA ruling that gave
the agency power to tackle climate change. Now we have Jennifer back on the podcast today to talk about this week's oral arguments in the case, and they were actually pretty interesting. Lindsay c the Solicitor General of West Virginia, who argued against the EPA on behalf of Republican led states got some pretty tough questions, and not from the justices you might expect, but then again, so did Elizabeth
pre Lager, the US Solicitor General. We'll get into all that in a bit, but first I asked Jennifer to remind us what this case is all about. Yeah, so, this case is about the scope of EPA's authority to regulate greenhouse gases from stationary power plants, coal fire power plants.
Petitioners West Virginia, a couple of mining companies, sued after a lower court scrapped the Trump administration's more industry friendly power plant rule, and they also, at the same time sort of scrapped the legal underpinning that folks used to challenge the Clean Power Plan, which was an Obama era rule for power plants that decided the best system of a mission reduction was a grid wide change versus a
source by source change. So overall, I mean, when it boils down to it, what this case is about is how the EPA can regulate the power sector and specifically regulate their greenhouse gas missions. Yeah, and the attorneys for the petitioners said, you know, this is not about Massachusetts versus EPA. They're not trying to open up a brawl over whether or not EPA even has the authority to
regulate carbon. It really just is about, you know, this a more narrow question on stationary power plants and ghg's and how far they can go with that. Yeah, So the arguments in this case we're on Monday. Tell me about what you found most notable, you know, or what were some of the most revealing moments of these arguments. I would say that the emphasis on major questions doctrine was probably in the underlying thread that really course through
the entirety of arguments, entirety of judges questions. Well, let's explain what that is. Let's explain what the major questions doctrine is, you know, because you're right, this is like, you know, underneath everything. So what exactly is that? It's the idea that Congress has to be super explicit in granting agencies authority to take action on issues that are of vast economic and political importance. They can't regulate in
the gray area, which they often do. I mean, that's one source mentioned to me this week speaking to them on the arguments. But it's the idea that Congress needs to be pretty specific about authority in order to take action and regulate on really big issues, whatever big issues are. I think the judges took a lot of time trying
to define that. So was that Like most of the argument, it sounds like it was more of a legal philosophy argument instead of focusing specifically on greenhouse gases and EPA and the power plant sector exactly. Yeah, general c arguing for West Virginia really right out the gate brought up major ques, major questions. Electricity generation is a pervasive and essential aspect of modern life and squarely within the state's
traditional zone. An EPA can now regulate in ways that cost billions of dollars, affect thousands of businesses, and are designed to address an issue with worldwide effect. This is major policymaking power under any definition, and the respondents argue EPA can resolve these questions and less clearly forbidden. This Court's precedents are clear. That's backward unless Congress clearly authorizes it. Section one to eleven does not stretch so far, and
Congress hasn't done so. Here she was, you know, it's like, you know, this is a case about greenhouse gases for power plants. But at the end of the day, it's also a case about the scope of of agency authority to make big system wide changes like this, and it really set the tone, I think for the entirety of arguments.
I was reading some of the coverage of the of the argument, and I have to admit I was really surprised that some of the conservative justices seemed like they were leaning towards the EPA and it specifically, I'm talking about Clarence Thomas. There's quite a bit of talk about outside defense and inside defense. I don't know how you can draw such clean distinctions. It would seem that some of the activity that you might think is based source
based is also outside defense. And Amy Coney Barrett just one question. I'm not sure that you quite answered Justice Kagan when she was asking about your formulation of the major Questions doctrine, because she described it as you know, and Brown and Williamson, you know, the FDA staying in its lane, what the FDA can regulate tobacco or if you think about the eviction moratorium case from earlier this term, you know, it was what the CDC can regulate the
landlord tenant relationship. Here for thinking about EPA regulating greenhouse gases. Well, there's a match between the regulation and the agency's wheelhouse. Right. Both of them made comments that would indicate that they would not rule the way you would think they would rule. Did you agree with that? What did you see there? Yeah? I wouldn't say that they were leaning towards the EPA. In fact, I don't even think. I thought the questioning
was a rather mixed bag. I don't think based on their judges questions you can read the tea leaves one way or another. I think where that may have like possibly been apparent is because they were working so hard on both sides of the aisle to try to flesh out major questions, both from the respondence and the petitioners.
I thought, Yeah, I mean, and Thomas definitely gave General see you grilling when it came to you know what, you know, drawing distinct lines around you know, how fall our EPA can can go with these kind of system wide changes. So you know, it sounded like the you know, the attorney for West Virginia got kind of a grilling from even some of the conservative justices. However, Justice Samuel Alito seemed like it was pretty clear that he does
not side with the EPA on this. I really don't see what the concrete limitations are in any of what you said when you taken if you take the arguments about climate change seriously, and this is a matter of survival, so long as the system that you devise doesn't mean that there isn't going to be there isn't going to be electricity, and so long as the costs are not absolutely crushing for the society, I don't know why EPA can't go even a lot further than it did in
the CPP. Can you talk a little bit about that that uh, you know, the EPA's reception at the court was also not you know, they weren't carried off on the Justice's shoulders metaphorically, of course. Yeah, Alito is definitely concerned with, you know, if how far EPA could actually go and if they could go further than the Clean Power Plan, which you know EPA insisted the Clean Power
Plan is dead and that plan is dead. But he was like, you know, with what are the limits here, especially when you're dealing with He said, you know, some people say this catastrophic issue of climate change, which it is catastrophic for the record. Pray Lagar responded to Alito saying, you know, it's EPA does have controls, understand. I mean, it's not like EPA can take an action that would absolutely pound industry with unreasonable costs. That's not that is
a limitation under the Clean Air Act. And she also said that it underscores why it's problematic, you know, her words, to talk about exercises of broad agency authority in this abstract way without an actual regulation on the book, and that that's really a crux of EPA's argument, that we don't have a rule yet. Yeah, and it sounds like she was trying to get at the idea that which we talked about last time, that she thinks that the States don't even have standing here because there's no rule
in place. There's no there's nothing is harming them. Was that kind of what she was getting at, that basically, there's no there's no reason to even sue in this place, right, Yeah, it's a you know, a just disability issue, like since there is no rule to actually test statutory interpretation with yet, it seems like this case is pretty premature according to
the EPA. You know, I feel like this case the arguments focused so much on like hypotheticals and broad philosophical questions rather than really traditional questions that we normally hear in cases like these on statutory interpretation and what the Clean Air Act actually says or doesn't say versus well, you know, how would you define a major issue for government and what is regulatable what is not? So it really, you know, it was a day of a lot of
hypotheticals and abstracts. I thought, yeah, overall, as we talked about last time, you know, I think the EPA probably had to be coming into this feeling pretty pessimistic. You know, the court is six to three conservatives versus liberals. You know, the fact that they even took this case seemed like it was a bad sign for the EPA. Do they
have any glimmers of hope now? After this argument? As we mentioned, Clarence Thomas and Namy Coney Barrett seemed to make some comments that might indicate they might rule differently than we think they would. Who knows though, in the end, it does the EPA feeling better now after the argument or not? Really? I am not going to speak for the EPA, but I you know that it if anyone at the agency thought they were coming in in a disadvantage. I will say I thought the questioning was a little
bit of a mixed bag. I thought the liberal block was a you know, as I said before, more active in their questioning than than the conservative block. I think, course, it'll only ask like one question or something like that. But there is a possibility that the court could issue in just an advisory opinion, you know, since they since they don't have, you know, a firm rule on the
books yet. I had one source say that it could likely not really fundamentally change the way EPA regulates under the Clean Air Act, for instance, but it could depending on what they say, it could actually have a much broader impact on just administrative law generally outside of climate. Yeah, for like every agency, not just the EPA. Okay, finally, very quickly, uh, let's talk about the timing next steps. Obviously, we just had the arguments on Monday. We're not going
to get an opinion anytime soon. But you know, what can we expect in terms of when the opinion will come down? What's what's the time frame here? Well, de term ends this summer in June, so I we hope that we would get an opinion before that time. I'm sure many people are eagerly awaiting, you know, what the what the judge stuff? Did the justices have to say on this? But you know it could come at any time. I if I were to give a best educated guess, I would imagine they're going to take a little bit
of time with this one. But you know, who knows. We'll see, we will see, uh, and maybe we'll have you back on once again after the opinion comes out to go over all that juicy, uh, you know, Jurisprudence. Jennifer Hejazzi with Limberg Law, thank you so much for coming on yet again to talk about this case. Really appreciate it. Awesome. Thanks David. And that's it for today's episode of Parts for Billion. If you want more environmental news,
check us out on Twitter. We use the handle at environment just that at environment, I'm at David B. Schultz. That's B as in B. Sure to check out our sister podcast Cases and Controversies. If you're into Supreme Court stuff, they've got you covered their big time. Today's episode of Parts for Billion was produced by myself, David Schultz. Parts for Billion was created by Jessica Coombs and Rachel Dagle, and is edited by Rebecca Baker and Chuck McCutcheon. Our
executive producer is Josh Block. Thanks everyone for listening those nine justices in Washington. I think you'd be pretty hard to keep track up. That's where we come in. I'm Jordan Reuben and I'm Kimberly Robinson. On our podcast Cases and Controversies, we give you a week by week accounting of the Supreme Court, the filings, the arguments, the opinions, and much much more. So. Check in on Fridays with Cases and Controversies to find out what's coming up on
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