On February 28, the U.S. Supreme Court will hear oral argument in a case challenging authority of the Environmental Protection Agency to regulate greenhouse gas emissions from power plants. The court should decide the case. By refusing to rule on the matter.
Because there are no limits on power sector emissions, the justices cannot properly evaluate their legality.
The EPA issued this document during the Obama administration Clean Power PlanThe goal was to reduce power plants carbon dioxide emissions by 32% below 2005 levels, by 2030. Trump’s Affordable Clean Energie Rule, which was toothless, replaced the plan. IncreasingMany states have higher emissions than those with no regulation. The U.S. Court of Appeals, District of Columbia Circuit, ruled that Trump was dead on his last day in office. struckThat action was deemed illegal.
The Biden administration took over at the EPA but did not request review by the Supreme Court. This was despite their commitment to taking strong action against climate change. The EPA Made clearIt will not seek to revive Clean Power Plan, which market conditions had rendered obsolete. PartyRecognized Supreme Court review. Instead, it would make a new rule.
The new rule has yet to be proposed. The Supreme Court cannot overturn any regulation that is currently in effect, because there is no regulation.
The court’s actions would not result in any regulation being revived. The only thing the court could theoretically do is to provide guidance on how the EPA’s future regulation might look. This is a quintessential advisory opinion that federal courts are unable to give.
Patrick Morrissey (the attorney general of West Virginia), who plays a leading role during this litigation, was specifically mentioned in a recent Public appearanceHe is seeking an advisory view. After acknowledging the fact that there is currently no EPA regulation in place, he said it was important to get clarity, for either the Biden administration (or a future administration) and that the courts might provide additional guidance that would set forth agency authority limits. This could help Congress do its work a little better.
An advisory opinion is a written definition of legal clarity and guideposts that are not tied to a live dispute about a policy.
These opinions could jeopardize the functioning of the various branches of government. This is a risk that the Supreme Court might take. RecognizedIn its earliest days, ReaffirmedAs recent as last year.
The Supreme Court has a method to solve this problem. After the oral argument, the Supreme Court should dismiss the case as unprovidently granted.
This is what the court does Twice a yearOn average, if a case is not well-suited for a decision. If the court decides that a case is not well suited for a decision, it can give guidance to EPA regarding future regulation.
Why the Court Should Dismiss this Case
Even if advisory opinion were allowed, which they aren’t, this case would not be a good vehicle to issue one. It does not pose a discrete legal question with an answer that is yes or no and would not be relevant to a future ruling. This case is not about whether or not the EPA has the authority under the Clean Air Act to regulate greenhouse gases. The Supreme Court already It performed well over a decade earlier.
It is also not in doubt that the EPA has the power to regulate power This case involves greenhouse gas emissions from plants under the Clean Air Act provision. 2011: The court DecentThis authority is also available to the EPA. These decisions are unquestioned by any party.
What is at risk is the form of a new regulation. Because there are so many options, the Supreme Court’s attention will not be devoted to a single question that is directly relevant to the agency’s future rulesmaking. Therefore, the advisory opinion of the courts will not only be ineffective but potentially even useless.
The challengers to the lower court decision are also taking advantage of the fact there is no regulation that the court can review. The North American Coal Co. is one example. Its counsel will argue the case. challengedTrump rule.
A party cannot defend a rule it has previously challenged. It cannot defend a rule it has already attacked. This is because it does not have a specific rule that the court can review.
Challengers distort the facts
The challengers want to DistortThe relevant facts. Trump administration tried to justify its repealing of Clean Power Plan. ClaimThe repeal would not have any adverse effects on greenhouse gases.
Republican-led states supported this position as did coal companies and companies owned by Republican-led governments Not notedDespite the fact that the plan never went into effect, carbon-dioxide emission from the power sector had dropped almost 30% since 2005 as a result of market-driven changes. This meant that the country was on track and in line to meet the planned goal ten years ahead of schedule.
But, they are still the same parties Keep it up (in debunked studiesContrary to both the Obama and Trump administrations’ findings, compliance with the outdated Clean Power Plan would result in hundreds of billions in higher electricity prices and, More:This will displace 40% of the coal generation and impose $64 billion to replace the plants that were closed.
The parties seeking Supreme Court review have inconsistently characterized the stakes in each case, in whatever way was most favorable in a particular proceeding. And the allegedly apocalyptic outcomes that would result if it does not intervene? Flatly contradictedThe very Actors from the power sectorThese consequences would allegedly be suffered by the victim OpposeThe non-case was used by challengers to weaken EPA’s ability to address climate change pollution. This case is not a good candidate for a court decision because of the uncertainty caused by the challengers changing claims.
The EPA has made a commitment to regulate the greenhouse gas emissions of power plants. When the rule is challenged, it will be up to the Supreme Court to review it. For now, however, the court should use the tool it has developed specifically for cases like this: It should declare the case inadmissible granted.
This article does NOT necessarily reflect the opinions of The Bureau of National Affairs, Inc., publisher of Bloomberg Law, Bloomberg Tax, or its owners.
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Information about the Author
Richard L. ReveszHe is the AnBryce Professor of Law at the New York University School of Law. He also serves as Dean Emeritus. As an expert in administrative and environmental law, he filed an amicus brief in the case.
