Monday is cleanup duty at the Supreme Court, as the Justices take up an errant decision by the D.C. Circuit Court of Appeals last year that revived the Obama Clean Power Plan—the same rule they blocked six years ago. [bold, links added]
At issue in West Virginia v. EPA is whether Congress gave the Environmental Protection Agency a limitless license to regulate greenhouse gas emissions.
States and coal companies aren’t asking the Court to reverse its misconceived Massachusetts v. EPA (2009) precedent that empowered the EPA to regulate CO2 emissions, though that deserves to be revisited.
They merely want the Court to bar the EPA from invoking narrow provisions of the Clean Air Act to force wholesale changes in energy systems.
The Obama Clean Power rule required states to develop plans to reduce CO2 emissions from their grids. Meeting EPA targets would effectively require them to shut down coal plants and eventually gas plants too.
Power providers over time would have to generate more renewable electricity, subsidize competitors to do so, or go out of business. If the EPA didn’t like states’ plans, it could impose its own.
In short, the agency pointed a gun at states and ordered them to shut down fossil-fuel plants. This violates the High Court’s anti-commandeering doctrine.
The Obama EPA divined its regulatory authority from a section of the Clean Air Act that requires states to submit plans setting “standards of performance” for sources of emissions within their borders.
The EPA had never before used this section to regulate a gas as ubiquitous as CO2 or force wholesale technological shifts in industries.
A 5-4 High Court majority stayed the rule in 2016. The Trump EPA then rescinded and replaced it with a narrower one regulating CO2 from coal plants.
The Trump EPA found the Clean Power Plan “significantly exceeded” its authority, and the law “unambiguously” forbids the EPA from requiring generation shifting—e.g., coal to renewables.
Democratic states sued to block the Trump repeal and replacement. A 2-1 D.C. Circuit majority on Jan. 19, 2021—a day before President Biden’s inauguration—vacated both, thus resurrecting the Clean Power Plan. The Environmental Defense Fund called it “the perfect Inauguration Day present.”
In the D.C. Circuit’s opinion, “Congress imposed no limits on the types of measures the EPA may consider” to reduce CO2 emissions as long as EPA considers the cost, air health and environmental impact, and energy requirements.
The Trump repeal-and-replacement was unlawful, the judges held because EPA perceived its authority too narrowly. Take that, Supreme Court.
The D.C. Circuit ruling would let the EPA reengineer the grid and force businesses to replace gas-powered appliances with electric.
The Biden EPA ironically argues the case is moot because emissions reductions that the Clean Power Plan was projected to achieve have already been met, and it’s redoing the rule.
Yet Mr. Biden’s goal is to eliminate carbon emissions from the economy. His unlawful vaccine mandate and eviction moratorium have shown that regulators will exceed their statutory authority unless courts stop them.
Here’s the chance to send that message to the EPA.
Read more at WSJ
