Speaker 1: We've got a big Supreme Court argument coming up this month.
Speaker 1: Today on the podcast, we're going to get you ready
Speaker 1: for it and talk about the climate change case that
Speaker 1: everyone's talking about. Hello, and welcome back once again to
Speaker 1: parse per Billion, the environmental podcast from Bloomberg Law. I'm
Speaker 1: your host, David Schultz. So later this month, the Supreme
Speaker 1: Court is going to hear the case West Virginia v. EPA,
Speaker 1: which could ultimately end up changing every aspect of how
Speaker 1: the federal government regulates greenhouse gas emissions. The case started
Speaker 1: off as a push to reinstate a Trump administration rule
Speaker 1: that governs emissions from the power sector. This rule, of course,
Speaker 1: was meant to replace the Obama administration's version, but both
Speaker 1: of those measures were ultimately scuttled by the course in
Speaker 1: one fashion or another. Now, however, this case is all
Speaker 1: the way at the Supreme Court, and it's about way,
Speaker 1: way more than just whether to reinstate a power sector
Speaker 1: rule or not. To explain this frankly very confusing situation,
Speaker 1: I called on Jennifer Hide Jazzi, who's covering West Virginia
Speaker 1: VAPA for Bloomberg Law. She explained how the justices may
Speaker 1: use this case to overturn a landmark ruling from just
Speaker 1: fifteen years ago, and about how this all got started
Speaker 1: in the first place. So Trump's Affordable Clean Energy role
Speaker 1: was the replacement to the Obama Air Clean Power Plant
Speaker 1: which proposed more sweeping regulations for carbon emissions from power plants.
Speaker 1: So the ACE rule shrunk the scope of that regulation
Speaker 1: to what can be limited inside the fence line of
Speaker 1: facilities rather than like a sector wide approach. So that
Speaker 1: the ACE rule was sued heavily by states, health groups,
Speaker 1: screen groups, and ultimately was tossed completely early last year,
Speaker 1: giving Biden what would have been a clean slate to
Speaker 1: craft news standards. But now this is where we get
Speaker 1: to my confusion or misunderstand. So the case originally started
Speaker 1: as a challenge saying that the rule that was struck
Speaker 1: down should not have been struck down. The Trump administration's
Speaker 1: rule should still be in place. But it seems like
Speaker 1: it's gotten the scope of the case, it has gotten
Speaker 1: much bigger. But now that it's at the Supreme Court,
Speaker 1: what happened there and how did the scope expand? Okay, yeah,
Speaker 1: so this is where EPA and other petitioners say things
Speaker 1: get murky and hypothetical. So this petition was filed in
Speaker 1: response to the DC Circuit striking down the use rule.
Speaker 1: But when the court did that, it also struck down
Speaker 1: the basis that states and coal companies used to challenge
Speaker 1: Obama's Clean Power Plan rule, so namely, what can be
Speaker 1: considered the best system of emission reduction under the Clean
Speaker 1: Air Act? So Trump's rule kept that baseline inside the
Speaker 1: fence line for facilities. Obama's rule called for outside the
Speaker 1: fence line sector wide changes. So this petition is addressing
Speaker 1: that scope of regulation, trying to draw lines around what
Speaker 1: agencies have the authority to do to regulate these emissions. Meanwhile,
Speaker 1: there is no current rule on the book yet for
Speaker 1: this administration. So respondents are like, why are we suing
Speaker 1: over a rule that was never implemented and rules that
Speaker 1: have yet to be released? Right, But now it seems
Speaker 1: like because the DC Circuit issues such as sweeping ruling,
Speaker 1: now it's being challenged at the Supreme Court, and that
Speaker 1: sweeping ruling could sweep in the opposite direction. And it
Speaker 1: sounds like, based on what you've been reporting, and you
Speaker 1: know what the case, I guess what the briefs have
Speaker 1: been saying, we could potentially have a situation where the
Speaker 1: Supreme Court could rule in the other direction and strip
Speaker 1: the executive branch of its authority to regulate greenhouse gases
Speaker 1: full stop. What's going on here? Uh yeah, I mean
Speaker 1: that's certainly within the realm of possibility. Definitely the worst
Speaker 1: case scenario for EPA. Massachusetts for EPA said that, you know,
Speaker 1: greenhouse gas regulations do indeed fall to that too, you know,
Speaker 1: the Environmental Protection Agency. What's an issue in this case
Speaker 1: is the scope of that authority. So what this case
Speaker 1: could potentially do is caught off administrative ability to regulate
Speaker 1: greenhouse gases in a way that actually makes a difference
Speaker 1: toward meaningful emission reductions in a country with outsized contributions
Speaker 1: to planet warming emissions. So yeah, like mass Chuset's VPA
Speaker 1: may not get overturned. I don't think that's on the
Speaker 1: likelier end of things. You know, the worst case scenario
Speaker 1: we were talking about, but stemming regulation authority would make
Speaker 1: it harder to regulate under that authority that mass v.
Speaker 1: EPA granted. And let's talk about mass Chusetts VPA a
Speaker 1: little bit, just so we are both on the same page.
Speaker 1: You know, that's of course a very famous decision from
Speaker 1: the Supreme Court back in two thousand and seven, and
Speaker 1: it said that the EPA not only can regularly greenhouse
Speaker 1: gas emissions, but that it must through the Clean Air Act.
Speaker 1: Is it fair to say that mass Chusetts VPA kind
Speaker 1: of laid the groundwork for the way that the federal
Speaker 1: government regulates greenhouse gas emissions throughout the entire country? Is
Speaker 1: I mean, was it that fundamental? Oh? Yeah, definitely, I
Speaker 1: mean that's it. That case granted EPA its authority to
Speaker 1: even issue standards on greenhouse gas emissions. So I think
Speaker 1: a lot of court watchers that are really concerned about
Speaker 1: climate are watching any type of climate case GHG case
Speaker 1: that gets up to the High Court very very very
Speaker 1: closely because of that authority. And one of the things
Speaker 1: that you've been reporting on, and I think a lot
Speaker 1: of other people have been looking at, is this question
Speaker 1: of the major questions doctrine that could be a real
Speaker 1: big issue here. And I get the sense that that's
Speaker 1: this idea, the sort of judicial philosophy that if Congress
Speaker 1: wants a federal agency to do something, it will explicitly
Speaker 1: state that in a law. It won't, you know, be
Speaker 1: vague about it is that right? Is that could I
Speaker 1: come into play here? Yeah? This is I mean, this
Speaker 1: is definitely a case that some folks are worried that
Speaker 1: are really going to bring up major questions in a
Speaker 1: pretty major way as it were. But yeah, so it
Speaker 1: major questions is the idea that courts won't defer to
Speaker 1: an agency's interpretation of statute if Congress didn't explicitly it's
Speaker 1: particularly with issues that are of vast economic and political importance,
Speaker 1: if Congress has not explicitly given that authority. So this
Speaker 1: is you know, one of those issues that kind of
Speaker 1: falls into does the agency have authority here? Do we
Speaker 1: give them deference on what they say? The statute says
Speaker 1: kind of thing, right, And it's important here because the agency,
Speaker 1: when it was you know, developing its its regulations, was
Speaker 1: using the Clean Air Act, was saying, you know, greenhouse
Speaker 1: gas emissions are an air pollutant, and through the Clean
Speaker 1: Air Act, we have the authority to regulate that. But
Speaker 1: of course the Clean Air Act was written in the
Speaker 1: seventies when we barely or maybe didn't know that greenhouse
Speaker 1: gas emissions were a problem. And so I guess that's
Speaker 1: that's how the major questions doctrine comes into play here, right, right?
Speaker 1: So what are you hearing from the folks who are
Speaker 1: watching this case closely? Uh? You know, which way are
Speaker 1: they predicting that the winds are going to blow? Here?
Speaker 1: There are six Republican appointees on the Supreme Court, so
Speaker 1: I have to imagine that, you know, the petitioners here
Speaker 1: like they're odds. I mean, I've a lot of folks
Speaker 1: I spoke to were pretty surprised they even took the
Speaker 1: petition at all, again because we don't have a rule yet,
Speaker 1: Like yeah, and you know, since the clean power plane
Speaker 1: isn't even on the playing field anymore, so the fact
Speaker 1: that they took up the authority question is is really
Speaker 1: concerning for a lot of folks, is especially anxiously watching
Speaker 1: Biden's kind of like slow waiting into meaningful climate and
Speaker 1: climate justice policy and then in combination with a pretty
Speaker 1: stalemated Congress. And that's a good point. And I've forgot
Speaker 1: to mention that we didn't even get into this whole
Speaker 1: issue of standing, Like the petitioners here are you know,
Speaker 1: kind of read states that are you know, pro fossil
Speaker 1: fuel development, but they're trying to save a rule here
Speaker 1: that's not even on the books, Like who's what is
Speaker 1: their injury? What is how are they being harmed by
Speaker 1: the current status quo. It's like that's that's another thing
Speaker 1: that that's an issue here, is like do they even
Speaker 1: have the right to sue? Right? And that I mean
Speaker 1: that is certainly something that's been in every respondent brief
Speaker 1: and amicus, you know, that's come out in supportive, supportive,
Speaker 1: you know, the EPA side of things. But they are
Speaker 1: saying that they will be harmed by a sort of
Speaker 1: like sector wide approach to you know, massive changing the
Speaker 1: face of how utilities run through administrative regulation. But it
Speaker 1: sounds like the folks that you're talking to are saying
Speaker 1: that the fact that that the court even is taking
Speaker 1: up this case and is even hearing this case is
Speaker 1: itself a sign of which way they're they're gonna rule.
Speaker 1: I don't know if I can even read the tea
Speaker 1: leaves on how a justice is going to rule in
Speaker 1: this kind of situation. I mean, I few others I
Speaker 1: spoke to, or at least, you know, in terms of
Speaker 1: possible outcomes here somewhat hopeful that this could lead to
Speaker 1: some kind of regulatory certainty or you know, move to
Speaker 1: finally put this issue to bed and just draw boundaries
Speaker 1: on what can and cannot be done in this realm.
Speaker 1: To be honest, I don't think I'm not sure what
Speaker 1: to expect here. I think people are just anxiously watching,
Speaker 1: and some folks are pretty worried. Yeah. Finally, let's talk
Speaker 1: about what would happen if, you know, the court rules
Speaker 1: in favor of the petitioners here and strips the EPA
Speaker 1: of a lot or most or all of its climate
Speaker 1: regulatory authority. What would the future look like in that scenario?
Speaker 1: I mean, it would essentially be up to Congress to
Speaker 1: you know, regulate greenhouse gases if it should want to.
Speaker 1: I mean, am I interpreting that right? Would Congress have
Speaker 1: to sort of pass new laws to regulate greenhouse gases?
Speaker 1: I mean yeah? I mean under the you know, EPA's
Speaker 1: worst case scenario, as we discussed before, completely worst worst
Speaker 1: case cuts off Biden's ability to regulate greenhouse gases at all,
Speaker 1: one tier down. It ties his hands pretty significantly for
Speaker 1: meaningful reductions. With Congress then in charge of picking up
Speaker 1: that slack. I think we can likely predict how that
Speaker 1: would play out. I think build back better wrangling was
Speaker 1: pretty much our early taste of that. In other words,
Speaker 1: that that, yeah, that like Congress has no appetite to
Speaker 1: really or no ability, no consensus to pass new climate laws.
Speaker 1: Is that kind of what you're getting at. Yeah, I
Speaker 1: mean there's definitely appetite, sure among many many lawmakers, there's
Speaker 1: appetite to move forward on climate, but yeah, exactly, ability
Speaker 1: to get the job done a different story. All right, Well,
Speaker 1: the oral arguments they're going to be really interesting. Maybe
Speaker 1: we'll get kind of a preview on where the justices
Speaker 1: are thinking and how they view this case. But until then,
Speaker 1: thank you so much Jen for coming on the podcast.
Speaker 1: And after the arguments, we'll have you back and we'll
Speaker 1: talk about how it went. Sounds good, looking forward to it.
Speaker 1: And that's it for today's episode of Parts per Billion.
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