Speaker 1: Today we visit that big climate change case at the
Speaker 1: Supreme Court that we told you about a few weeks ago.
Speaker 1: We just got an insight into how the justices are
Speaker 1: thinking about it and does the EPA actually have some
Speaker 1: reason for optimism. Stay tuned, Hello, and welcome back once
Speaker 1: again to Parts Pervilion, the environmental podcast from Bloomberg Law.
Speaker 1: I'm your host, David Schultz. So a few weeks ago
Speaker 1: we gave you the pregame show. Now here's the postgame show.
Speaker 1: Today we're gonna be talking about West Virginia v. EPA,
Speaker 1: the Supreme Court case that challenges the agency's power to
Speaker 1: regular greenhouse gases from the energy sector. A few weeks ago,
Speaker 1: we had Bloomberg Law reporter Jennifer hit Jazzy on to
Speaker 1: talk about what this case was about and why it
Speaker 1: potentially threatens the landmark Massachusetts v. EPA ruling that gave
Speaker 1: the agency power to tackle climate change. Now we have
Speaker 1: Jennifer back on the podcast today to talk about this
Speaker 1: week's oral arguments in the case, and they were actually
Speaker 1: pretty interesting. Lindsay c the Solicitor General of West Virginia,
Speaker 1: who argued against the EPA on behalf of Republican led
Speaker 1: states got some pretty tough questions, and not from the
Speaker 1: justices you might expect, but then again, so did Elizabeth
Speaker 1: pre Lager, the US Solicitor General. We'll get into all
Speaker 1: that in a bit, but first I asked Jennifer to
Speaker 1: remind us what this case is all about. Yeah, so,
Speaker 1: this case is about the scope of EPA's authority to
Speaker 1: regulate greenhouse gases from stationary power plants, coal fire power plants.
Speaker 1: Petitioners West Virginia, a couple of mining companies, sued after
Speaker 1: a lower court scrapped the Trump administration's more industry friendly
Speaker 1: power plant rule, and they also, at the same time
Speaker 1: sort of scrapped the legal underpinning that folks used to
Speaker 1: challenge the Clean Power Plan, which was an Obama era
Speaker 1: rule for power plants that decided the best system of
Speaker 1: a mission reduction was a grid wide change versus a
Speaker 1: source by source change. So overall, I mean, when it
Speaker 1: boils down to it, what this case is about is
Speaker 1: how the EPA can regulate the power sector and specifically
Speaker 1: regulate their greenhouse gas missions. Yeah, and the attorneys for
Speaker 1: the petitioners said, you know, this is not about Massachusetts
Speaker 1: versus EPA. They're not trying to open up a brawl
Speaker 1: over whether or not EPA even has the authority to
Speaker 1: regulate carbon. It really just is about, you know, this
Speaker 1: a more narrow question on stationary power plants and ghg's
Speaker 1: and how far they can go with that. Yeah, So
Speaker 1: the arguments in this case we're on Monday. Tell me
Speaker 1: about what you found most notable, you know, or what
Speaker 1: were some of the most revealing moments of these arguments.
Speaker 1: I would say that the emphasis on major questions doctrine
Speaker 1: was probably in the underlying thread that really course through
Speaker 1: the entirety of arguments, entirety of judges questions. Well, let's
Speaker 1: explain what that is. Let's explain what the major questions
Speaker 1: doctrine is, you know, because you're right, this is like,
Speaker 1: you know, underneath everything. So what exactly is that? It's
Speaker 1: the idea that Congress has to be super explicit in
Speaker 1: granting agencies authority to take action on issues that are
Speaker 1: of vast economic and political importance. They can't regulate in
Speaker 1: the gray area, which they often do. I mean, that's
Speaker 1: one source mentioned to me this week speaking to them
Speaker 1: on the arguments. But it's the idea that Congress needs
Speaker 1: to be pretty specific about authority in order to take
Speaker 1: action and regulate on really big issues, whatever big issues are.
Speaker 1: I think the judges took a lot of time trying
Speaker 1: to define that. So was that Like most of the argument,
Speaker 1: it sounds like it was more of a legal philosophy
Speaker 1: argument instead of focusing specifically on greenhouse gases and EPA
Speaker 1: and the power plant sector exactly. Yeah, general c arguing
Speaker 1: for West Virginia really right out the gate brought up
Speaker 1: major ques, major questions. Electricity generation is a pervasive and
Speaker 1: essential aspect of modern life and squarely within the state's
Speaker 1: traditional zone. An EPA can now regulate in ways that
Speaker 1: cost billions of dollars, affect thousands of businesses, and are
Speaker 1: designed to address an issue with worldwide effect. This is
Speaker 1: major policymaking power under any definition, and the respondents argue
Speaker 1: EPA can resolve these questions and less clearly forbidden. This
Speaker 1: Court's precedents are clear. That's backward unless Congress clearly authorizes it.
Speaker 1: Section one to eleven does not stretch so far, and
Speaker 1: Congress hasn't done so. Here she was, you know, it's like,
Speaker 1: you know, this is a case about greenhouse gases for
Speaker 1: power plants. But at the end of the day, it's
Speaker 1: also a case about the scope of of agency authority
Speaker 1: to make big system wide changes like this, and it
Speaker 1: really set the tone, I think for the entirety of arguments.
Speaker 1: I was reading some of the coverage of the of
Speaker 1: the argument, and I have to admit I was really
Speaker 1: surprised that some of the conservative justices seemed like they
Speaker 1: were leaning towards the EPA and it specifically, I'm talking
Speaker 1: about Clarence Thomas. There's quite a bit of talk about
Speaker 1: outside defense and inside defense. I don't know how you
Speaker 1: can draw such clean distinctions. It would seem that some
Speaker 1: of the activity that you might think is based source
Speaker 1: based is also outside defense. And Amy Coney Barrett just
Speaker 1: one question. I'm not sure that you quite answered Justice
Speaker 1: Kagan when she was asking about your formulation of the
Speaker 1: major Questions doctrine, because she described it as you know,
Speaker 1: and Brown and Williamson, you know, the FDA staying in
Speaker 1: its lane, what the FDA can regulate tobacco or if
Speaker 1: you think about the eviction moratorium case from earlier this term,
Speaker 1: you know, it was what the CDC can regulate the
Speaker 1: landlord tenant relationship. Here for thinking about EPA regulating greenhouse gases. Well,
Speaker 1: there's a match between the regulation and the agency's wheelhouse. Right.
Speaker 1: Both of them made comments that would indicate that they
Speaker 1: would not rule the way you would think they would rule.
Speaker 1: Did you agree with that? What did you see there? Yeah?
Speaker 1: I wouldn't say that they were leaning towards the EPA.
Speaker 1: In fact, I don't even think. I thought the questioning
Speaker 1: was a rather mixed bag. I don't think based on
Speaker 1: their judges questions you can read the tea leaves one
Speaker 1: way or another. I think where that may have like
Speaker 1: possibly been apparent is because they were working so hard
Speaker 1: on both sides of the aisle to try to flesh
Speaker 1: out major questions, both from the respondence and the petitioners.
Speaker 1: I thought, Yeah, I mean, and Thomas definitely gave General
Speaker 1: see you grilling when it came to you know what,
Speaker 1: you know, drawing distinct lines around you know, how fall
Speaker 1: our EPA can can go with these kind of system
Speaker 1: wide changes. So you know, it sounded like the you know,
Speaker 1: the attorney for West Virginia got kind of a grilling
Speaker 1: from even some of the conservative justices. However, Justice Samuel
Speaker 1: Alito seemed like it was pretty clear that he does
Speaker 1: not side with the EPA on this. I really don't
Speaker 1: see what the concrete limitations are in any of what
Speaker 1: you said when you taken if you take the arguments
Speaker 1: about climate change seriously, and this is a matter of survival,
Speaker 1: so long as the system that you devise doesn't mean
Speaker 1: that there isn't going to be there isn't going to
Speaker 1: be electricity, and so long as the costs are not
Speaker 1: absolutely crushing for the society, I don't know why EPA
Speaker 1: can't go even a lot further than it did in
Speaker 1: the CPP. Can you talk a little bit about that
Speaker 1: that uh, you know, the EPA's reception at the court
Speaker 1: was also not you know, they weren't carried off on
Speaker 1: the Justice's shoulders metaphorically, of course. Yeah, Alito is definitely
Speaker 1: concerned with, you know, if how far EPA could actually
Speaker 1: go and if they could go further than the Clean
Speaker 1: Power Plan, which you know EPA insisted the Clean Power
Speaker 1: Plan is dead and that plan is dead. But he
Speaker 1: was like, you know, with what are the limits here,
Speaker 1: especially when you're dealing with He said, you know, some
Speaker 1: people say this catastrophic issue of climate change, which it
Speaker 1: is catastrophic for the record. Pray Lagar responded to Alito saying,
Speaker 1: you know, it's EPA does have controls, understand. I mean,
Speaker 1: it's not like EPA can take an action that would
Speaker 1: absolutely pound industry with unreasonable costs. That's not that is
Speaker 1: a limitation under the Clean Air Act. And she also
Speaker 1: said that it underscores why it's problematic, you know, her words,
Speaker 1: to talk about exercises of broad agency authority in this
Speaker 1: abstract way without an actual regulation on the book, and
Speaker 1: that that's really a crux of EPA's argument, that we
Speaker 1: don't have a rule yet. Yeah, and it sounds like
Speaker 1: she was trying to get at the idea that which
Speaker 1: we talked about last time, that she thinks that the
Speaker 1: States don't even have standing here because there's no rule
Speaker 1: in place. There's no there's nothing is harming them. Was
Speaker 1: that kind of what she was getting at, that basically,
Speaker 1: there's no there's no reason to even sue in this place, right, Yeah,
Speaker 1: it's a you know, a just disability issue, like since
Speaker 1: there is no rule to actually test statutory interpretation with yet,
Speaker 1: it seems like this case is pretty premature according to
Speaker 1: the EPA. You know, I feel like this case the
Speaker 1: arguments focused so much on like hypotheticals and broad philosophical
Speaker 1: questions rather than really traditional questions that we normally hear
Speaker 1: in cases like these on statutory interpretation and what the
Speaker 1: Clean Air Act actually says or doesn't say versus well,
Speaker 1: you know, how would you define a major issue for
Speaker 1: government and what is regulatable what is not? So it really,
Speaker 1: you know, it was a day of a lot of
Speaker 1: hypotheticals and abstracts. I thought, yeah, overall, as we talked
Speaker 1: about last time, you know, I think the EPA probably
Speaker 1: had to be coming into this feeling pretty pessimistic. You know,
Speaker 1: the court is six to three conservatives versus liberals. You know,
Speaker 1: the fact that they even took this case seemed like
Speaker 1: it was a bad sign for the EPA. Do they
Speaker 1: have any glimmers of hope now? After this argument? As
Speaker 1: we mentioned, Clarence Thomas and Namy Coney Barrett seemed to
Speaker 1: make some comments that might indicate they might rule differently
Speaker 1: than we think they would. Who knows though, in the end,
Speaker 1: it does the EPA feeling better now after the argument
Speaker 1: or not? Really? I am not going to speak for
Speaker 1: the EPA, but I you know that it if anyone
Speaker 1: at the agency thought they were coming in in a disadvantage.
Speaker 1: I will say I thought the questioning was a little
Speaker 1: bit of a mixed bag. I thought the liberal block
Speaker 1: was a you know, as I said before, more active
Speaker 1: in their questioning than than the conservative block. I think, course,
Speaker 1: it'll only ask like one question or something like that.
Speaker 1: But there is a possibility that the court could issue
Speaker 1: in just an advisory opinion, you know, since they since
Speaker 1: they don't have, you know, a firm rule on the
Speaker 1: books yet. I had one source say that it could
Speaker 1: likely not really fundamentally change the way EPA regulates under
Speaker 1: the Clean Air Act, for instance, but it could depending
Speaker 1: on what they say, it could actually have a much
Speaker 1: broader impact on just administrative law generally outside of climate. Yeah,
Speaker 1: for like every agency, not just the EPA. Okay, finally,
Speaker 1: very quickly, uh, let's talk about the timing next steps. Obviously,
Speaker 1: we just had the arguments on Monday. We're not going
Speaker 1: to get an opinion anytime soon. But you know, what
Speaker 1: can we expect in terms of when the opinion will
Speaker 1: come down? What's what's the time frame here? Well, de
Speaker 1: term ends this summer in June, so I we hope
Speaker 1: that we would get an opinion before that time. I'm
Speaker 1: sure many people are eagerly awaiting, you know, what the
Speaker 1: what the judge stuff? Did the justices have to say
Speaker 1: on this? But you know it could come at any time.
Speaker 1: I if I were to give a best educated guess,
Speaker 1: I would imagine they're going to take a little bit
Speaker 1: of time with this one. But you know, who knows.
Speaker 1: We'll see, we will see, uh, and maybe we'll have
Speaker 1: you back on once again after the opinion comes out
Speaker 1: to go over all that juicy, uh, you know, Jurisprudence.
Speaker 1: Jennifer Hejazzi with Limberg Law, thank you so much for
Speaker 1: coming on yet again to talk about this case. Really
Speaker 1: appreciate it. Awesome. Thanks David. And that's it for today's
Speaker 1: episode of Parts for Billion. If you want more environmental news,
Speaker 1: check us out on Twitter. We use the handle at
Speaker 1: environment just that at environment, I'm at David B. Schultz.
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Speaker 1: they've got you covered their big time. Today's episode of
Speaker 1: Parts for Billion was produced by myself, David Schultz. Parts
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Speaker 1: and is edited by Rebecca Baker and Chuck McCutcheon. Our
Speaker 1: executive producer is Josh Block. Thanks everyone for listening those
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