What’s at Stake in the Latest SCOTUS Climate Cases?
Coal companies and red state attorneys-general are seeking sweeping rulings to block EPA from meaningfully limiting power plants’ staggering carbon pollution.
Coal companies and a group of state attorneys-general hostile to climate action filed briefs in the Supreme Court Monday seeking sweeping rulings to block the Environmental Protection Agency from putting meaningful limits on power plants’ staggering 1.6 billion tons per year of climate-changing carbon pollution.
NRDC and our partners will respond in full with briefs in January. But here are three initial observations. The first two sections respond to the petitioners’ hyperbolic claims about the past regulations and EPA’s future intentions. The third section highlights a sleeper claim that hasn’t gotten much notice, but could actually do devastating harm.
A Hair-on-Fire Story Belied by Actual Data
The petitioners all share a hair-on-fire storyline: EPA, through the 2015 Clean Power Plan, sought to exercise “industry-transforming, state-displacing power,” as West Virginia puts it, that would have destroyed the power sector and gravely damaged the national economy. This is their predicate for asking the Court to expand something called the “major questions doctrine” from a rarely-invoked canon of statutory construction into a broad anti-regulatory rule.
Often cases come to court before you can debunk this sort of hyperbole. But here we can check their math in real time, against actual history. The petitioners brandish old, industry-generated estimates that power companies would have faced hundreds of billions of dollars in costs to meet the Plan’s 2030 emission reduction goals, threatening the stability of the electric grid and putting a huge hit on the economy. (EPA’s estimates at the time were orders of magnitude lower.)
In fact, because the power industry is already shifting from coal to cleaner sources of power—a shift driven by economics, not regulation—it already met EPA’s 2030 emission goals in 2019, more than a decade ahead of schedule, with no discernible cost impacts, even though the Clean Power Plan never went into effect.
What the briefs don’t say is that in 2019 the Trump EPA found that repealing the Clean Power Plan would save the industry no money—nada. That makes this a strange case for making new law on “major questions.”
To paraphrase Justice Scalia (and also Sigmund Freud), despite all the talk about elephants, sometimes what’s hiding in the mousehole is just a mouse.
Coming for Your Thermostats?
EPA Administrator Michael Regan announced in February that the agency would not implement either rule—neither the Obama-era Clean Power Plan nor the Affordable Clean Energy rule, the Trump EPA’s do-nothing replacement. Instead, he promised to reevaluate EPA’s legal authority under this part of the Clean Air Act (Section 111(d)) and issue a new rule, on “a clean slate.”
That led most Court-watchers to predict the Justices would wait until EPA took a fresh look at the statute, built a new record, and issued a new rule. Now that the Court has taken the case, the petitioners find themselves arguing either against the Clean Power Plan—whose goals have already been achieved and which isn’t going into effect—or against hypothetical new rules that haven’t been issued yet.
And those hypotheticals are extreme. Some briefs suggest the horrors of a transition to cleaner sources of power, but maybe that doesn’t seem dramatic enough given the transition already underway. So they reach farther: EPA may seek to reshape any industry and shutter factories right and left. EPA may adopt the Green New Deal. EPA may regulate your home, require everyone to replace woodstoves with heat pumps, or put solar panels on the roof, one brief suggests. Why EPA may even come for your thermostats.
When this case comes to argument, some Justices may well wonder what are they being asked to review? Why opine on the old rule now? Why decide things in the abstract, when there is no actual rule for states or industry to comply with? Why not wait until EPA issues a new rule, and there is a concrete legal interpretation and a fresh factual record to review? Who has standing to complain now? Is there a real case or controversy here at all?
The Sleeper Issue: Will We Return to the Feeble Air Pollution Regime Before 1970
Most observers are focusing on petitioners’ claims that EPA may require only “inside-the-fence” control measures for individual plants—that the agency must ignore the real-world dynamics of how power plants are interconnected, how the companies that operate them interact to deliver electricity minute by minute, and the range of tools those companies commonly use to meet pollution goals.
But some petitioners—notably North Dakota—are making an even more momentous, destructive, and reactionary claim: that EPA cannot make binding emission rules at all for industry under this part of the law. Rather, they claim EPA can only give states advice, and that limits on industrial pollution must be left to the states.
This is the world we lived in before 1970, before the modern Clean Air Act. Except for early steps on vehicle emissions in the late ‘60s, industrial pollution control was left to states. And Americans choked in soot, smog, and toxic pollution.
States were ineffective, to say the least. They were subject to industrial blackmail (if you regulate my pollution, I will move). They paid no heed to the impact of their pollution on other states. And Americans had no national right to safe and clean air, no right to a minimum degree of protection regardless what state you lived in.
In the 1970 Clean Air Act, Congress responded to an upwelling of public demand, and established by overwhelming bipartisan votes a national program with a potent federal role in curbing pollution. That program, as the Supreme Court decided in Massachusetts v. EPA, included the authority to curb climate-changing air pollutants that endanger our health and well-being.
In some parts of the Act, Congress forged a federal-state arrangement known as “cooperative federalism,” with three key elements: (1) EPA sets binding national targets, (2) states get the first shot at developing plans to limit industrial pollution to meet those targets, and (3) EPA is required to regulate those industries directly if states don’t submit adequate plans.
The Supreme Court upheld the Clean Air Act’s cooperative federalism program to meet the EPA-set National Ambient Air Quality Standards (NAAQS). Reflecting on the weakness of state air pollution efforts in the 1960s, in Train v. NRDC the Court said: “The response of the States to these manifestations of increasing congressional concern with air pollution was disappointing. Even by 1970, state planning and implementation under the Air Quality Act of 1967 had made little progress. Congress reacted by taking a stick to the States in the form of the Clean Air Amendments of 1970.”
Under this framework, if there is more than one way to meet the NAAQS, states can choose which path to follow—curbing the emissions of some industries more than others as they choose—as long as the NAAQS is met. But if the state plan falls short, EPA must step in.
Congress used exactly this approach in Section 111(d) for “categories” of similar existing industrial sources of dangerous pollutants, including carbon dioxide, that are not subject to a NAAQS. There’s a direct tie-in: Section 111(d)(1) directs EPA to follow a process like that for meeting the NAAQS. Here, instead of setting an acceptable concentration in the air, EPA specifies the emission rate or limit that reflects the degree of emission limitation achievable by sources in the “category.”
Section 111(d) says that each state then gets first crack at adopting a plan to meet the applicable emission rate at plants in its domain. States have flexibility to vary the obligations among the plants as long as they achieve the same or better overall results. They can even write variances—subject to EPA approval—if they show that a particular plant is different enough that it really doesn’t belong in the same category with the others.
EPA approves the state plan if it is “satisfactory”—i.e., if it provides for each plant to meet the applicable emission rate—and EPA writes a federal plan if the state does not do so.
North Dakota wants to turn this upside down. It wants to redefine cooperative federalism so that EPA’s role is just to offer the states technical advice. The states then get to pick and choose the standards they want, and to issue variances without any supervision. EPA has no further role unless the state sits entirely on its hands.
In addition to blocking action on carbon pollution, North Dakota’s theory would undermine the existing standards under Section 111(d) for a half dozen other industries, including municipal waste incinerators and landfills.
North Dakota would throw us back to the ineffective air pollution regime we had in the 1950s and 1960s. Some states would act on climate pollution, but even their citizens would still be harmed by the extreme weather and other climate impacts fueled by unchecked pollution from states unwilling or unable to take on the big polluters. And by once again unleashing the corrosive force of interstate competition for industry, the old approach would discourage even leading states from stepping up to meet the climate crisis.
In this way, North Dakota and its allies invert and pervert the concept of “cooperative federalism.” The state’s issue may seem a sleeper, but it’s really a nightmare.
These are just some of the high stakes for public health and climate protection involved in these cases. Check out these posts from our partners at EDF and Sierra Club, too. We will have more to say next week as more briefs come in from friends of the court on the coal industry’s side.