The Supreme Court’s hearings this week begin on Monday with four combined cases raising core questions about how the federal government today regulates air pollution in a strategy to reduce global warming as a hazard to human health and the environment.
The “live” audio (no video) can be heard at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at cspan.gov/supremecourt and C-Span Now App.
Monday’s cases: West Virginia v. Environmental Protection Agency, consolidated with three other cases. The hearing begins at 10 a.m. and is scheduled for 70 minutes. The cases are very complex, and multiple issues are at stake, so the hearing probably will run longer than that.
Background: If America and the world have become more sensitive, in the 21st Century, to the threat to humankind of air pollution and the heating up of the planet, it could be said that this realization came rather slowly.
Power plants – the generating stations run by the electricity industry – have been burning carbon-containing fossil fuels and belching harmful gases into the atmosphere since the first plant opened on Pearl Street in New York City in 1882, yet the federal government did not begin regulating air pollution at all until 1955, and did not do so significantly until the Clean Air Act was passed by Congress in 1963. Power plant emission limits were not even attempted until 2015.
The first gasoline-powered automobile was patented in 1895, beginning a history of serious air pollution from mobile sources, yet the federal government did not begin regulating those tailpipe exhausts until 1975.
The main government agency created by Congress in 1970 to deal with toxic carbon emissions — the Environmental Protection Agency — was itself hesitant to take on the problem of global warming until prodded into doing so by a Supreme Court decision in 2007.
Now, those two sources – stationary power plants and mobile cars, trucks and planes – jointly produce the greatest volume of air pollution reaching the atmosphere. The pollutants are moved from place to place by the winds, further heating up the global environment and bringing freakish changes in the weather.
Tomorrow, as the Supreme Court resumes its rather frequent study of air pollution law, it will focus on a stark difference between the governing approaches of the Obama and Trump Administrations, with the outcome likely shaping how the Biden Administration can act.
The four cases before the Court are as complex a mix of law and policy as a federal bureaucratic initiative can be, but the controversy has a simple foundation. Fundamentally at stake is whether government or economic conditions will be the prime mover in national energy policy and its impact on the quality of the nation’s air supply. A significant part of that is whether the time has come to end America’s reliance on fossil fuels — especially coal and oil — for its energy, moving instead to wind and solar, “cleaner” sources.
Examined as a question of the scope of the Clean Air Act, especially as a result of major amendments in 1970 and 1990, the four consolidated cases before the Court are a test of whether the federal government (that is, the EPA) must limit its controls on power plant pollution to single plants, one at a time, or instead has the authority to regulate by shifting limitations on greenhouse gas emissions across multiple generating sources.
The Obama Administration’s EPA adopted the broader approach, in the so-called “Clean Power Plan” announced in 2015. It was drafted to meet the U.S. obligations of the Paris Climate Agreement. Because of legal challenges, it has never gone into effect, and in fact may never do so. In addition, at no point over years of court review has its legality been finally decided.
Aimed for the first time at carbon dioxide (CO2) pollution from existing power plants, the Clean Power Plan was designed to shift generating capacity from plants emitting higher amounts of CO2 to plants with lower amounts. In general, this meant plants burning coal had to yield generating capacity to plants fueled by natural gas, or plants fired by natural gas had to yield to those relying on renewable sources like wind or solar. (Such a system is sometimes called a “cap-and-trade” method.)
That approach, EPA contended, was the “best system of emission reductions for existing plants.” The Plan was in the form of guidelines that state governments, which have the option to fashion their own emission policies in the first instance, were to follow.
The Clean Power Plan was met by a barrage of challenges: by the coal industry, sensing that this was a major step toward shutting down coal mining altogether, joined by parts of the electricity industry, seeing the Plan as an attempt to make EPA the nation’s energy czar, and some states, complaining of lost discretion to fashion their own plans.
When they could not get a lower federal appeals court to put the Plan on hold, they persuaded the Supreme Court to do so – in a 5-to-4 vote in 2016. The Court’s action set the stage for the lower court to review the legality of the Plan. But that court never finished the task at that time, because it was still pondering the dispute when the Trump Administration came into office and the new leadership at EPA took a different approach.
In 2019, the Trump EPA concluded that the Clean Air Act flatly bars EPA from requiring power plants to shift generation capacities to each other as a pollution-reducing approach. The law, the agency declared, only allowed it to adopt measures to apply to individual power plants, and it announced its own plan recommending new technologies for use by individual plants. Economic forces at work in the energy industry would do any shifting in generation capacity that was worthwhile, EPA said.
A new courthouse battle then began to unfold, in the same federal appeals court that had been drawn in earlier but had not had a chance to rule. (When a program or policy of a federal agency is involved, challenges often go directly to an appeals court instead of to a first-level federal trial court.) There were new challenges to the Trump EPA repeal of the Clean Power Plan and its substitute plan, and new arguments that EPA had no authority to impose any limits on CO2 emissions from existing coal-fired power plants.
This time, however, the appeals court was able to complete its review, issuing a 185-page ruling in January of last year with the court unanimous on some points and split 2-to-1 on others. Even so, it did not decide whether any version of the Clean Power Plan would be legal.
Instead, the court ruled that the Trump EPA had been wrong in interpreting the Clean Air Act as flatly forbidding generation capacity shifts between existing power plants, but did not spell out exactly how that approach had to work. It said it was leaving it up to the EPA to take a fresh look. So, it overturned the Trump EPA’s repeal of the Clean Power Plan and the Trump substitute for it. If also ruled that EPA did have authority to regulate CO2 emissions from existing power plants.
The Biden Administration then came into office, and its EPA asked the appeals court to put its ruling on generation-shifting on hold pending that agency’s new review. That court did so but put into effect its ruling against the Trump substitute. Thus, at that point, no rule on CO2 emissions from existing power plants remained in effect. The Biden EPA did tell the appeals court, however, that it had no plan to revive the Clean Power Plan in its new review, because of intervening changes that had occurred in the meantime in the electricity industry.
At that point, a new round of appeals went to the Supreme Court. Biden Administration lawyers opposed any review, arguing that there were no binding rules now in effect so the challengers faced no restrictions while EPA was carrying out its new review. It would be time enough for the courts to get involved after EPA had finished, the Court was told. Apparently, the Court was unpersuaded: it granted review anyway.
The questions before the Court: Does the Clean Air Act allow EPA to adopt generation capacity shifts among existing power plants as an anti-pollution approach? Does the Act allow EPA to impose any limits on CO2 emissions from existing power plants that burn coal?
Additional question: Biden Administration lawyers have not given up on their argument that the Court should not decide these cases at all. In their main legal brief, they repeated the point that the challengers here can claim no legal threat as this controversy now stands. So, they said, any ruling by the Court in that circumstance would be a forbidden advisory opinion. (Since 1793, the Supreme Court has held to the position that it can only decided genuine legal disputes, not give abstract legal advice.)
The Biden team elaborated, saying that the challengers lack constitutional “standing” – they had no legal basis for pursuing the case – because they now face no injury. They also added that, if the Court felt that it should ease the challengers’ anxiety because the appeals court’s broad decision on the Clean Air Act remains technically a precedent, the Court should vacate that opinion. These points seem to add this implied question: does the Court itself lack constitutional authority, under the Article III requirement that there be a genuine “case or controversy,” to decide these cases?
It is hard to know whether the Court will feel obliged to answer that question. After all, the Court did go ahead and grant review of these cases even in the face of the Biden team’s argument against doing so. That might mean that the Justices have considered the point and already opted to reject it, silently. That, however, might raise questions about judicial activism, since the “standing” issue is one bearing on the Court’s basic jurisdiction. Tomorrow’s hearing may reveal whether anyone on the Court is concerned about it.
Significance: If, in the end, the Court does rule on the scope of the Clean Air Act in these four cases, that could be the most significant decision on “greenhouse gas” pollution and global warming since the Court’s 2007 ruling pushing a reluctant EPA into confronting that threat.
This new round in the controversy is hotly contested; it took the appeals court all of 14 pages in its opinion just to list the lawyers involved on various sides of the dispute at that court, and the Supreme Court now has a sizable stack of friend-of-court law briefs on all sides.
It is important to note that the Court’s membership has changed since the 2007 decision, which brought an expansive reading of the Clean Air Act. Only Justice Stephen G. Breyer remains from that five-Justice majority, but three dissenters remain: Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Clarence Thomas.
Moreover, Roberts, Alito and Thomas were part of a five-Justice majority when the Court in 2016 blocked the Obama EPA’s Clean Power Plan. Now, the conservative majority on the Court has grown to six Justices. Joining Roberts, Alito and Thomas in that bloc are the three appointees of President Trump – Amy Coney Barrett, Neil M. Gorsuch and Brett M. Kavanaugh.
Gorsuch and Kavanaugh already have become strong skeptics of the sweeping powers exercised by the federal bureaucracy, and have been discussing the possibility that the Court should compel agencies – when they take bold, broad actions – to show that Congress has conferred such powers on them and has done so in the clearest terms.
Those sentiments appeared, at least in part, to be in the background when the Court in January struck down by a 6-to-3 vote the Biden Administration’s wide-ranging rules seeking to impose nationwide workplace protection of more than 84 million workers from the Covid-19 virus.
On Tuesday, the Court will hold hearings on two issues: the scope of criminal prosecution of doctors who prescribe drugs outside normal professional use, and the duty of health insurance plans to cover hospital charges for dialysis treatments for kidney disease.
