Supreme Court Agrees to Hear Challenge to Greenhouse Gas Regulation on Eve of Climate Summit

The U.S. Supreme Court granted certiorari Friday afternoon to a set of challenges to EPA’s authority to regulate greenhouse gas (“GHG”) emissions.[i] The Court’s decision on the eve of the Conference of Parties (COP-26) in Scotland tees up what could be the most significant Clean Air Act (“CAA”) case since the 2007 decision in Massachusetts v. EPA.

As we reported last month in our preview of the October 2021 term, the petitioners seek reversal of a January 2021 decision by the D.C. Circuit that vacated the Affordable Clean Energy rule. The Trump Administration adopted that rule as a replacement to the Obama Administration’s Clean Power Plan. The D.C. Circuit’s decision the day before President Biden took office provided the new administration with the opportunity to draft its own GHG emissions rules for power plants. But the Court’s decision to hear the petitions may ultimately limit the Biden Administration’s regulatory options.

The Court will consider whether Congress authorized EPA to regulate GHGs under CAA Section 111(d). That provision directs EPA to prescribe regulations for States to submit plans to regulate existing sources of air pollutants that would be subject to regulation if they were new.[ii] Those regulations should use the “best system of emission reduction” to achieve their reduction goals. The Obama Administration used that provision to issue the Clean Power Plan—a regulation that required states to phase out carbon pollution from power plants over time and ultimately transition to renewable energy generation. In opposing the petition for certiorari, EPA argued there is “no sound reason for this Court to grant review now to resolve the legality of a prior agency regulation that has no present operative effect and that EPA does not intend to revive.”[iii] The Court will hear the case nonetheless.

The Court’s decision to grant certiorari could put a number of issues in play. The Court could decide that Congress failed to provide a “clear statement” that EPA could regulate GHGs through CAA Section 111(d).[iv] The Court could also use this as an opportunity to revisit the nondelegation doctrine if it finds the provision too vague. The Court could also place a limiting principle on its holding in Massachusetts v. EPA that GHGs constitute air pollutants that EPA may regulate under the CAA.

We expect the Court will schedule argument for early next year and issue its decision before its summer recess. Marten Law will follow up more fully on this and other developments before the U.S. Supreme Court in forthcoming Newsletter articles.

For more information on this case, please contact Jack Lyman, or James Pollack.

[i] https://www.supremecourt.gov/o...

[ii] 42 U.S.C. § 7411(d).

[iii]https://www.supremecourt.gov/DocketPDF/20/20-1530/186855/20210805165924807_W%20Va%20080521.3.pdf

[iv]See Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014) (“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism.”) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).