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Leading environmental groups and trade associations ask the Supreme Court to reject attacks on Clean Air Act
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Leading environmental groups and trade associations ask the Supreme Court to reject attacks on Clean Air Act

Washington, D.C. (Jan.18, 2022)In a brief filed today with Supreme Court, the coalition of environmental, public and clean energy industry organizations urges the Court to reject the radical attempt by the coal industries to strip the Environmental Protection Agency from its ability to combat the climate crisis. The coalition asks the Court to affirm that the Clean Air Act gives the EPA the authority and duty to reduce the harmful carbon pollution coming from the nation’s dirtiest power stations. Below are key points from the brief.

The Key Arguments

Respondents merits brief: These groups argue that no petitioner is entitled to pursue this case, because there is no rule for carbon dioxide pollution from existing power plants. EPA has made clear that any new rule would start from a clean slate.

Consequently, no power plant is currently subjected to regulation under either rule. Moreover, no power companies have petitioned the Court for review. The disposition below can not be cited as a cause of harm by any coal company or state petitioning. The primary complaint of petitioners is about how EPA might exercise its authority in a future ruling. These anticipatory claims, however, are not ripe. Litigants must wait for the EPA’s new rulemaking to determine the issues for judicial review. This will avoid entangling Court in an advisory exercise over an abstract or technical policy dispute.

Respondents also argue that petitioners’ claims would fail on the merits even if there was a real case or controversy.

[The Clean Air Act of 1970]The comprehensive regulatory framework was created to address not only the hazardous air pollutants that were identified at that time but also to provide EPA and state with tools to address new threats to air quality and to adopt evolving pollution control methods. Congress added provisions to ensure that the statutes would continue to be effective over the decades. These included technology-forcing mechanisms to stimulate innovation, requirements for EPA’s periodic review and updating standards, and the obligation to list and regulate any additional pollutants that become hazardous.

Respondents remind us that the Supreme Court already addressed this matter, including in American Electric Power vs. Connecticut:

This Court has already determined Section 7411 as a core provision in the Clean Air Act. It gives EPA authority and authority to decide whether or not to regulate power plant emissions of carbon dioxide. It also assigns EPA complex balancing tasks to determine the best pollution control systems within the context of a technical and complicated record for particular industrial sectors.[]

Section 7411 does NOT contain a sell by date. Contrary to popular belief, Congress created this section (and the Act in general) to provide EPA with tools to address pollution issues and to impose regulatory requirements. EPA was given the task of periodically reviewing and updating its best system estimates and emission limits at least eight years. Section 7411 allows for reductions based in evolving systems of emissions reduction. This is a feature and not a problem of the provision.

The Trump administration’s ineffective replacement for Clean Power Plan and petitioners claims EPAs authority is limited to the fenceline, are not supported by statute.

[These claims rest]A novel interpretation of Section 7411 states that it restricts the best system for emission reduction to those measures that are implemented at the source. This restriction is not supported by the statute. Furthermore, this restriction would prohibit commonplace, cost effective trading and averaging between regulated sources. This would force EPA (and other states and industries) to rely upon emission-reduction strategies that are both less efficient and more expensive.

Petitioners who wish to challenge the authority and actions taken by the EPA cannot do so on the basis for the now defunct Clean Power Plan. They will need to wait for a revised rule.

Petitioners claim that the CPP’s best system went beyond previous applications of emissions averaging, trading, by predicating its standards of coal plants on emission-reduction credit made available by new renewable generation facilities. This aspect of the CPP is the subject of repeated claims by petitioners that the CPP illegally required coal plants purchase credits from non-emitting power producers. If EPA adopts any measures that resemble the CPP in a future rulemaking it will be subject to judicial scrutiny. This Court should decline petitioners’ request to pass judgment on the legality and validity of a hypothetical future rule.

Respondents rebut the argument North Dakota made about the EPA’s authority to establish minimum pollution control requirements in states.

North Dakota’s inversion would return the country to a time before the Clean Air Act, which provided minimum federal standards for industrial polluting control. Congress rejected the failed 1970 approach and replaced it in 1970 with a framework that greatly reduces air pollution and is ready to face new threats as they arise.

The clear language of the Statute should not be overruled by the Judge-Made Major Queries Doctrine

Petitioners and their amiciThey are pushing for the Supreme Court’s radical approach to invoking a new major question doctrine, which would eliminate the federal government’s ability to perform basic functions such as protecting workers rights, ensuring food safety, and policing financial fraud. The question is whether the United States will have a functioning government that protects its citizens’ health and well-being. For decades, it would be dangerous to use a case about an inoperative policy to impose a reckless Constitutional doctrine.

This issue is also addressed in the brief of respondents.

“The Court has never applied major question principles to agency rules that are not under review or defunct. It would have no meaningful impact even if it was reinstated.” The Court has never applied such principles to a hypothetical rule whose effects are still unknown.”


The brief was filed in:

  • Environmental Defense Fund
  • NRDC (Natural Resources Defense Council)
  • Sierra Club
  • Clean Air Task Force
  • American Lung Association
  • American Public Health Association
  • Appalachian Mountain Club
  • Clean Air Council
  • Clean Wisconsin
  • Conservation Law Foundation
  • Minnesota Center for Environmental Advocacy
  • Chesapeake Bay Foundation
  • Center for Biological Diversity
  • Environmental Law & Policy Center
  • Advanced Energy Economy
  • Solar Energy Industries Association
  • American Clean Power Association


The coal companies and allies behind this case want the EPA to limit carbon pollution and to thwart the fight to combat climate change. The petitioners’ actions will bring the United States back to the pre-1970s era, when there were few pollution controls before the Clean Air Act was passed.

The EPA’s authority in regulating power sector pollution to protect clean air, public health and the environment is supported by strong legal arguments. The EPA’s authority to regulate power sector pollution is consistent with the Constitution, Clean Air Act and Supreme Court decisions. Massachusetts v. EPA American Electric Power vs. Connecticut.

The U.S. Department of Justice, EPA, a coalition of 22 states and cities, as well as a group of power companies serving millions of customers across the country, are expected to file briefs today with the Supreme Court supporting EPA’s authority to regulate carbon emissions from power plants.

You can find the complete brief, additional information and filings for this case here Here.

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