Supreme Court to hear biggest climate change case in a decade

WASHINGTON — In the most significant environmental case in more than a decade, the Supreme Court on Monday will hear arguments in a dispute that could limit or even eliminate the authority of the Environmental Protection Agency. field in controlling the pollution that is heating the planet.

A supreme court decision, with absolute conservatism, could sever President Biden’s plan to cut greenhouse gas emissions in half by the end of the decade, which scientists say deemed necessary to avert the most catastrophic effects of climate change.

They can limit the federal government’s ability to reduce greenhouse gas emissions from power plants in a way that’s possible, said Michael Oppenheimer, professor of geosciences and international affairs at Princeton University. reasonable. The power sector is the second largest source in the United States of carbon emissions that are leading to climate change.

But the results could have consequences far beyond air pollution, limiting the ability of federal agencies to regulate health care, workplace safety, telecommunications, the financial sector, and the public sector. more than that.

“If the court ordered the EPA to take a very specific and narrow path to addressing greenhouse gases, as a matter of fact, it could harm the ability of other agencies to enact regulations. rules that protect 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 federal law – OSHA, Clean Water Act, hazardous waste regulation. In theory, it could even limit the Fed’s power to set interest rates.”

At issue is a federal regulation that broadly governs emissions from power plants. But in a strange way, this provision actually never went into effect and does not currently exist.

The legal controversy began in 2015 when President Barack Obama announced the Clean Power Plan, his main strategy to combat climate change. Citing its powers under the Clean Air Act, the Obama administration planned to require each state to reduce carbon dioxide emissions from the power sector – primarily by replacing coal-fired power plants with wind, energy solar energy and other clean sources. Electricity generation is the second largest source of greenhouse gas emissions in the United States, after transportation.

But the Clean Power Plan was never implemented. After a series of lawsuits from Republican states and the coal industry, the Supreme Court suspended the program. After President Donald J. Trump took office, he made a new plan to the effect is the same as no rules. But on the last day of Mr. Trump’s presidency, a federal appeals court found that the Trump administration had “Misunderstanding the law” and ignore the Trump plan. That cleared the way for the Biden administration to enact its own regulation, which it has yet to do.

Legal experts said it is very unusual for the Supreme Court to accept a case around a hypothetical future regulation.

“Trying to figure out the extent of EPA’s authority to regulate greenhouse gases when there is no justification for regulation is just odd,” said Jonathan Adler, a law professor at Case Western Reserve University. for the court to consider. “I was surprised when they received this case.”

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

Instead, Republican attorneys general in 18 states and some of the nation’s largest coal companies would argue that the Clean Air Act of 1970 limited the EPA to only ordering changes to power plants. individually, not across the power sector as a whole.

Conservatives have long argued that the executive branch generally oversees the constitutionally vested authority to regulate all types of economic activity.

“It’s really a fundamental question of who decides the big issues of the day,” said Patrick Morrisey, attorney general for West Virginia, speaking at an event in Washington earlier this month. . “Are those unelected officials, or should they be the people’s representatives in the National Assembly? That’s what this case is all about. It is very simple. ”

Others argue that Congress has empowered the executive to broadly regulate air pollution under the Clean Air Act. Legislature makes laws; they say the operator does it through regulations.

“Just because opponents have been particularly fierce in their objections does not change the fact that this regulation is no different from the hundreds of regulations that agencies have introduced since the New Deal – true,” said Richard Revesz. as intended by Congress. who teaches environmental law at New York University and submitted a brief in support of the administration.

With high stakes, each side has attracted legitimate backing from a range of supporters. Notably, many of the nation’s largest power companies – which will be subject to environmental regulation – have submitted legal briefs in favor of the government. They were attended by 192 members of Congress, the US Conference of Mayors, climate and public health advocates, and tech giants like Apple, Google and Netflix.

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

Mr Morrissey suggested he was emboldened by a 6-3 split on the court between conservatives and liberals, including a trio of Trump appointees. “We are optimistic about the results we are about to achieve,” he said.

Biden administration officials and environmentalists admit to having brought up both the composition of the court and recent court decisions against federal rules, such as block federal vaccine authorization and the end of Mr. Biden ban on deportationMr. Morrissey’s optimism is probably well-founded.

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

A spokesman for the Justice Department declined to discuss the case before oral arguments. But in its court brief, the Biden administration urged the court to dismiss the case, noting to the plaintiffs that “the current absence of any federal regulation of greenhouse gases does not harm them.” “.

That argument might resonate with Justice Brent Kavanaugh, one of the conservatives on the court, who First time hearing about West Virginia lawsuit against Obama’s power plant regulation when he was a federal appeals judge in 2015.

That appeals court dismissed that case because the new rule was only in draft form and not yet final. At the time, Mr. Kavanaugh told West Virginia attorneys: “For us to get things resolved before it happens seems very unusual.”

The Biden administration will be joined by some of the nation’s largest public and private power companies in its verbal debates, which favor a broad regulation of their greenhouse gas pollution. .

Power companies say they like the kind of flexibility offered under Obama’s plan, which allows them to reduce emissions by making changes to the grid – shutting down some plants, making homeowners Other machines operate more efficiently and expand wind and solar energy. They do not want to be required to make highly regulatory changes to individual power plants, which the plaintiffs argue is the only type the government can authorize, because they say it will increase the cost.

“The regulated industry itself is saying they are not against the EPA’s authority,” said Jody Freeman, an attorney at Harvard and a former climate official at the Obama White House. “I think the courts will pay attention to what the industry has to say,” she said, noting that in a recent case of the Biden administration’s authorization of a Covid vaccine for large employers, The Supreme Court blocked that order except in healthcare cases. workers who have requested the regulation.

And Justice Kavanaugh himself made that point, noting in the arguments for the vaccine mandate, “the people who are regulated aren’t here complaining about regulation.”

EPA attorneys will listen closely, as they are expected to propose power plant climate regulation as soon as next month.

The Supreme Court is hearing the case on the same day that scientists convened by the United Nations are scheduled to release a report that offers the most comprehensive look at the dire threats posed by global warming. demand for human civilization.

As the effects of climate change are already being demonstrated in the form of devastating floods, wildfires, droughts and sea level rise that in the past year alone have killed people and caused billions of dollars in damage across the country. In the US, Mr. Biden has pledged to drastically cut greenhouse gases. United States is Historically, the country that pumped the most pollution heats the planet into the atmosphere.

But Mr Biden’s climate legislation is stalled on Capitol Hill and could collapse if Republicans win control of one or both houses of Congress in the midterm elections this fall.

That has put more emphasis on the power, authority and reach of regulations. After issuing power plant regulations later this year, the EPA plans to announce tough new limits on auto pollution next year to accelerate the shift from gasoline-powered cars to electric cars. electric bowl.

And that is why, the plaintiffs argue, their case is not too early, although the details of the upcoming regulations are still unknown.

“The threat is very real,” said Morrissey, attorney general for West Virginia. “It’s going to happen now.”

Legal experts on both sides said they consider it the first instance of the growing authority of federal agencies at a time of deadlocked Congress in passing new legislation on matters of law. climate change, immigration to gun control.

“Congress gets nice pushpins and nice offices because they have to legislate, but they don’t,” said Mr. Adler, a professor at Case Western Reserve University. “There has been a long-standing trend of the executive branch trying to fill the void left by Congress’ inaction, and each administration is going to be more aggressive on this issue than the previous one. And there’s the bigger question of whether the courts should agree to that. ” Supreme Court to hear biggest climate change case in a decade

Fry Electronics Team

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