15 years of Supreme Court climate fights come to a head today

Source: By Pamela King, E&E News • Posted: Sunday, February 27, 2022

The U.S. Supreme Court, as photographed Sept. 2, 2021.

The U.S. Supreme Court. Francis Chung/E&E News

Fifteen years after it issued its landmark ruling in Massachusetts v. EPA, the Supreme Court is about to get another chance to define the contours of federal climate regulation.

On Monday, the justices will hear arguments in West Virginia v. EPA, a novel case that asks whether the government can — in theory, since no such rule currently exists — broadly regulate carbon emissions from existing power plants.

Attorneys involved in Massachusetts v. EPA said they expect the Supreme Court’s new 6-3 conservative majority to take a skeptical view of the agency’s authority. They said West Virginia could upend precedent set in the watershed 2007 case, which cemented EPA’s authority to regulate greenhouse gases as air pollutants under the Clean Air Act.

“The court is not only more ‘conservative,’ in a political sense, than it was in 2007,” said Georgetown Law professor Lisa Heinzerling, who crafted the winning argument for states and environmentalists in Massachusetts v. EPA. “It is also more willful and aggressive in pursuing an anti-regulatory agenda.”

Of the five justices who voted with the majority in Massachusetts v. EPA, only one — Stephen Breyer — still sits on the court. Three of the four justices who voted with the dissent remain on the bench.

Massachusetts v. EPA arose from a petition filed in 1999 during the George W. Bush administration by a lawyer at the International Center for Technology Assessment urging EPA to invoke its Clean Air Act authority to regulate greenhouse gas emissions from new motor vehicles.

The lawyer, Joe Mendelson III, said that at the time, EPA was focused only on regulating criteria air pollutants — like carbon monoxide and ground-level ozone — rather than carbon dioxide and other planet-warming gases.

“EPA would kindly defer and avoid the issue,” said Mendelson, who is now senior counsel of policy and business development at Tesla Inc. “We were looking for sort of a third way if the legislative way were not fruitful.”

When EPA declined calls for regulation, states and environmental groups launched a legal fight. They suffered a loss in 2005 in the U.S. Court of Appeals for the District of Columbia Circuit before scoring their historic victory before the nation’s highest bench.

“I can’t say that we thought it would go all the way to the Supreme Court,” Mendelson said, recalling his thinking at the time he wrote the initial EPA petition.

None of the parties in the West Virginia case have asked the justices to overturn precedent set in Massachusetts v. EPA.

“No one is asking for that explicitly. Nobody,” said Allison Wood, who represented utility groups in support of the government’s position in Massachusetts v. EPA. “The only court that can overturn that decision is this one. Is it possible? Yes. Is it likely? I don’t think so.”

But many legal observers expect the justices will use West Virginia to put guardrails around EPA’s Clean Air Act authority, as they have in other cases since Massachusetts v. EPA.

“The big question is, how far does the court go if it limits EPA’s authority?” said Wood, now a partner at the firm McGuireWoods LLP.

Heinzerling of Georgetown said that the Supreme Court has “chipped away” at EPA authority in the years since Massachusetts v. EPA and that the justices appear prepared to whittle down agency powers once again.

“The four justices in dissent in Massachusetts v. EPA are now part of a six-justice majority, and they clearly haven’t forgotten their dissents,” she said.

The new climate case

The West Virginia case that is currently before the justices builds on Massachusetts v. EPA and other high court climate battles of the last 15 years.

West Virginia was brought by a coalition of red states and coal companies after the D.C. Circuit last year struck down the Trump-era Affordable Clean Energy rule, which limited emissions reductions to facility-level upgrades at power plants.

The 2019 rule had gutted the Obama administration’s 2015 Clean Power Plan, which took a systemwide approach in setting aggressive emissions reduction goals for existing power plants.

The Supreme Court, which accepts only about 1 percent of cases that come its way, stunned legal observers last fall when it agreed to review the D.C. Circuit decision — even as President Biden’s EPA said it planned to issue a brand-new rule.

Tom Sansonetti, who led the Justice Department’s environment division when Massachusetts v. EPA was making its way through the D.C. Circuit and was named on the briefs, said the Biden administration should be getting its ducks in a row to do what it can to enforce whatever rules the Supreme Court deems EPA can issue.

As it stands, Sansonetti said, the Biden administration lacks the confirmed political appointees — including an EPA air chief — it needs to act on emissions.

“Everyone’s quarreling about the law, but what’s the application of the law if there’s no one at home or in the position to choose the priorities?” said Sansonetti, now a partner at the firm Holland & Hart LLP. “There’s no immediate effect.”

While red states and coal firms have backed the Supreme Court challenge, the largest U.S. utilities — the companies that would be subject to EPA’s regulation — have urged the justices to uphold the agency’s authority.

They say a decision rejecting EPA authority could leave utilities vulnerable to a litany of lawsuits like the ones emitters faced in the lead-up to the 2011 case American Electric Power Co. v. Connecticut. In that ruling, the Supreme Court said EPA’s Clean Air Act authority superseded federal common law tort claims against polluters.

The Supreme Court has decided at least one other major climate case in the years since Massachusetts v. EPA: In 2014, the justices ruled in Utility Air Regulatory Group v. EPA that the agency’s regulation of emissions from vehicles did not by extension trigger permitting requirements for stationary sources.

Massachusetts v. EPA is “like a big green light: ‘Go, you can do this,’” said Wood of McGuireWoods. AEP “gives a red light to the tort cases,” she said.

Then UARG is a “yellow light,” Wood said. She added that the ruling says to EPA, “You can’t do anything you want under the Clean Air Act. You have to stay within the bounds of the statute.”

Mass. v. EPA memorable moments

Environmental lawyers say they were optimistic going into arguments in Massachusetts v. EPA in November 2006.

“We were confident … of the argument that the Clean Air Act covered greenhouse gas emissions,” said David Doniger, senior strategic director of the Natural Resources Defense Council’s climate and clean energy program. “We were just laying it out there and were obviously pleased with that decision.

“This time, the court has changed,” he continued, “but the arguments that the other side’s got have some real big weaknesses in them, and we’re just laying them out there.”

Doniger recalled the moment during argument in Massachusetts v. EPA when then-Supreme Court Justice Anthony Kennedy, a Republican appointee who had a reputation as the court’s swing vote, asked Jim Milkey, the attorney arguing for Massachusetts, to offer his best case that the states had standing to bring their lawsuit — an issue that ended up being pivotal to the states and environmentalists’ win.

Milkey, who now sits on the Massachusetts Supreme Court, didn’t have an answer, Doniger recalled.

Then Kennedy supplied one: Georgia v. Tennessee Copper, a 1907 Supreme Court ruling that said states have special sovereignty over pollution within their borders.

“I was sitting next to another lawyer, and I said, ‘We just won the case,’” Doniger recalled.

Lawyers involved in Massachusetts v. EPA also remembered then-Justice Antonin Scalia’s scrutiny of Massachusetts’ position — particularly on standing. Scalia, who ended up writing the dissenting opinion in Massachusetts v. EPA, had a notoriously limited view of who had the right to bring lawsuits to court.

“I thought that the standing requires imminent harm,” Scalia said in 2006 in response to Milkey’s argument about the connection between greenhouse gas emissions and sea-level rise. “If you haven’t been harmed already, you have to show the harm is imminent. Is this harm imminent?”

When decision day came in April 2007, environmentalists celebrated.

But advocates of the Bush administration’s position said they believed the Supreme Court’s finding ignored legislative history indicating that Congress didn’t intend the Clean Air Act to address climate change.

“I thought: ‘You’re glossing over and ignoring a lot of evidence that Congress didn’t really intend this result,’” said Wood of McGuireWoods.

Monday’s arguments

In the West Virginia arguments, observers say they will be listening for questions from the justices about the timing of the red states and coal companies’ challenge.

The case is unusual in that the justices agreed to take it up in the absence of an EPA rule. The D.C. Circuit struck down the Trump rule last year, and the Biden administration has said it has no plans to return to the Obama-era Clean Power Plan.

EPA has said it plans to issue a proposed carbon rule this summer, despite the pending Supreme Court case.

“So what are we fighting about?” said Doniger, who is representing nongovernmental organizations and trade groups in the West Virginia case.

Doniger said West Virginia and other challengers are also in the interesting position of making the case that the Clean Power Plan was too costly — even though the power sector met the 2015 rule’s requirements more than a decade in advance, despite the regulation never officially taking effect.

“The crushing rate increases haven’t occurred,” Doniger said. “It’s pretty rare that you get to verify — or in this case, verify the falsity — of the hyperbole that the opponents were bringing to the game back in 2016.”

The Biden administration and environmentalists at one time may have been able to easily pull one of the court’s conservatives — Chief Justice John Roberts — over to their side, but the presence of a new six-justice majority means they’ll have to win the support of another Republican appointee.

Legal observers say they’ll be watching to see what questions Justices Brett Kavanaugh and Amy Coney Barrett — the two other members of the court who often vote with Roberts — ask on Monday. But Kavanaugh has previously expressed skepticism about the breadth of power the Clean Air Act gives EPA, and Barrett has previously questioned climate science.

“You have to reckon with the court you have,” said Doniger. “It’s pretty clear that there are at least some justices that are in favor of doctrines that would not back regulatory authority, but it’s our mission, our task to show in the first place why there’s really no case properly before them now — and even if there were, their answer should be that this is in fact in EPA’s lane.”

He said the justices have a wide berth between rubber-stamping a very broad rule like the Clean Power Plan and inhibiting the agency to a “do-nothing rule” limited to facility-level efficiency upgrades, like the Affordable Clean Energy rule.

“There’s a big space in between those two alternatives, and the government and we are trying to make sure the court understands that,” Doniger said. He later added: “This case is about whether there’s going to be any recognition of that middle space.”

On decision day — which is expected to come by early summer — David Bookbinder, a former Sierra Club attorney who represented environmental groups in Massachusetts v. EPA, said he would be watching for “as narrow a ruling as possible.”

“That’s what I’ll be looking for — or hoping for,” he said.

Outlook

Despite winning the argument in 2007 that EPA has authority to regulate greenhouse gas emissions, environmental attorneys say they are discouraged that the fight has taken so long and that the federal government has done so little to put that power to use.

The legal petition that birthed Massachusetts v. EPA was filed in 1999. The Supreme Court didn’t reach its ruling in the case until 2007.

In 2012, the Obama administration finalized vehicle standards that required greenhouse gas emissions reductions through model year 2025 — before they were eviscerated by the Trump administration’s EPA.

The Biden administration has now set the vehicle standards back on course  but there is still no rule in place for the power sector, the second largest source of U.S. greenhouse gas emissions.

Bookbinder, now chief counsel at the Niskanen Center, said he was disappointed to see the Obama administration wait so long to issue its Clean Power Plan, which was released in 2015, only to be frozen by the Supreme Court in 2016.

Former President Trump took office in 2017 and rolled back the regulation with his Affordable Clean Energy rule in 2019.

“They should have known — presumably, they did know — that if a Republican won in 2016, [the Clean Power Plan] would still be in litigation and not baked into people’s expectations and would be killed by an incoming administration,” Bookbinder said.

He added that the federal government has yet to fully wield the power the Supreme Court gave it in Massachusetts v. EPA.

“It’s really just sitting there as precedent yet to be robustly exploited by the agencies,” Bookbinder said.

Mendelson, whose current employer is backing the Biden administration in the West Virginia case, said it’s important to remember “the long, arduous journey” environmental lawyers have been on to get EPA to act on greenhouse gas emissions.

He added: “Hopefully, we don’t have a ruling from the Supreme Court that sets everyone back on another decade journey to find the authority and will to address this issue.”

Arguments in West Virginia v. EPA are scheduled to begin at 10 a.m. Monday.

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