After Sen. Joe Manchin (Senator), The White House has abandoned its main legislative proposal, which would have required utilities to produce more low-carbon electricity. It would also have fined those that fail to increase their clean output annually.D-W.Va. said he’d torpedo the administration’s agenda if Democrats included the measure in a sweeping spending bill currently under consideration. Democrats are also expected to lose control of Congress in next year’s election.
It concerns a legal snafu dating back to 1990, when George H.W. Bush was president. Bush signed two slightly different versions of the Clean Air Act, confusing the legal landscape about the distinction between federal and state power in regulating greenhouse gasses.
The Obama administration relied on the law that was interpreted to give agencies greater authority when it proposed its Clean Power Plan. The Supreme Court ruled in February 2016 that the law ambiguity of Section 111 (D) was sufficient to temporarily halt the implementation of the regulation. Before the White House could resolve the issue, Donald Trump became president, and put Scott Pruitt—the former Oklahoma attorney general who led the lawsuit that resulted in the stay against the Clean Power Plan—in charge of the EPA. The Clean Power Plan was quickly scrapped.
The US Court of Appeals for District of Columbia Circuit ruled that the Clean Power Plan was legal and sound shortly before President Joe Biden was inaugurated. It also rejected the weaker regulation that the Trump administration wanted to replace it.
The Biden administration is still working to develop regulations that will reduce emissions. None of these regulations rely on Section 111(D), which is already controversial. “It’s only this one statute of the Clean Air Act, which is one of many tools the administration has,” Michael Gerrard, director of Columbia Law School’s Sabin Center on Climate Change Law, told HuffPost. “I don’t think it’s a problem for most of the measures the administration might want. But there’s this one particular tool that might be in trouble.”
The court could, however, seek to “take this as an opportunity to rule more broadly about the ability of Congress to delegate decisions to agencies,” by going after the non-delegation doctrine, and might “say Congress is going to have to give EPA authority over such an important area and be more clear and explicit.”
This would be a victory for plaintiffs. The Senate is split 50-50, so Democrats need to vote in lockstep in order to pass a bill. This will give unique power to senators like Manchin who, with his opposition to climate regulations, and a personal fortune tied to a coal company, has attracted donations from the fossil fuel industry over the past year. He’d be unlikely to vote for legislation granting the EPA new powers to regulate greenhouse gases. And Republicans are favored to win back at least one chamber of Congress in next year’s midterm election.
“As a practical matter, this will almost certainly prevent the Biden Administration from moving forward with a new rule to regulate carbon emissions from the power sector,” Jeff Holmstead, a George W. Bush-era EPA air administrator who now works at the energy lobbying firm Bracewell, said in an emailed statement calling the decision a “huge deal—and a big surprise.”
“They’ll have to wait to see what the Supreme Court says about how (and whether) they can regulate carbon emissions from the power sector under current law,” he added.
The Natural Resources Defense Council, a powerful and well-funded environmental lawyer, pledged Friday that it would fight the Supreme Court cases. “Coal companies and their state allies are asking the Court to strip EPA of any authority under the Clean Air Act to meaningfully reduce the nearly 1.5 billion tons of carbon pollution spewed from the nation’s power plants each year—authority the Court has upheld three times in the past two decades,” David Doniger, senior strategic director of the NRDC’s climate and clean energy program, said in a statement. “We will vigorously defend EPA’s authority to curb power plants’ huge contribution to the climate crisis.”
West Virginia Attorney General Patrick Morrisey, who signed onto the legal petition, called the court’s decision to hear the case the “biggest Supreme Court news since our win in Feb of 2016.”
“We must not allow Biden’s EPA to impose unlawful climate regs on our nation,” he wrote in a tweet.
Biden’s efforts to rein in US emissions have already faced challenges from the federal judiciary, which is now stacked with judges Trump appointed. In June, Judge Terry Doughty of US District Court for Western District of Louisiana, a Trump appointee was appointed. issued a ruling lifting the White House’s pause on leasing federal land to oil and gas companies. Biden’s Department of the Interior is now set to auction off about 80 million acres of the Gulf of Mexico to drillers on Nov. 17, just five days after the U.N. climate summit comes to a close.