WEBVTT - Climate Regulation Hinges on Case at Supreme Court 0:00:00.080 --> 0:00:03.000 We've got a big Supreme Court argument coming up this month. 0:00:03.080 --> 0:00:05.160 Today on the podcast, we're going to get you ready 0:00:05.200 --> 0:00:07.600 for it and talk about the climate change case that 0:00:07.800 --> 0:00:16.680 everyone's talking about. Hello, and welcome back once again to 0:00:16.800 --> 0:00:20.000 parse per Billion, the environmental podcast from Bloomberg Law. I'm 0:00:20.040 --> 0:00:22.840 your host, David Schultz. So later this month, the Supreme 0:00:22.880 --> 0:00:25.760 Court is going to hear the case West Virginia v. EPA, 0:00:25.800 --> 0:00:28.920 which could ultimately end up changing every aspect of how 0:00:28.960 --> 0:00:32.880 the federal government regulates greenhouse gas emissions. The case started 0:00:32.920 --> 0:00:35.880 off as a push to reinstate a Trump administration rule 0:00:36.159 --> 0:00:39.560 that governs emissions from the power sector. This rule, of course, 0:00:39.600 --> 0:00:42.920 was meant to replace the Obama administration's version, but both 0:00:42.920 --> 0:00:45.559 of those measures were ultimately scuttled by the course in 0:00:45.640 --> 0:00:49.559 one fashion or another. Now, however, this case is all 0:00:49.600 --> 0:00:51.920 the way at the Supreme Court, and it's about way, 0:00:51.960 --> 0:00:54.560 way more than just whether to reinstate a power sector 0:00:54.640 --> 0:00:58.520 rule or not. To explain this frankly very confusing situation, 0:00:58.880 --> 0:01:01.520 I called on Jennifer Hide Jazzi, who's covering West Virginia 0:01:01.600 --> 0:01:05.280 VAPA for Bloomberg Law. She explained how the justices may 0:01:05.360 --> 0:01:07.840 use this case to overturn a landmark ruling from just 0:01:07.959 --> 0:01:10.840 fifteen years ago, and about how this all got started 0:01:10.920 --> 0:01:15.080 in the first place. So Trump's Affordable Clean Energy role 0:01:15.160 --> 0:01:18.759 was the replacement to the Obama Air Clean Power Plant 0:01:18.760 --> 0:01:25.520 which proposed more sweeping regulations for carbon emissions from power plants. 0:01:25.560 --> 0:01:28.960 So the ACE rule shrunk the scope of that regulation 0:01:29.160 --> 0:01:33.000 to what can be limited inside the fence line of 0:01:33.040 --> 0:01:36.240 facilities rather than like a sector wide approach. So that 0:01:36.520 --> 0:01:40.559 the ACE rule was sued heavily by states, health groups, 0:01:40.560 --> 0:01:44.400 screen groups, and ultimately was tossed completely early last year, 0:01:44.480 --> 0:01:47.800 giving Biden what would have been a clean slate to 0:01:47.920 --> 0:01:51.760 craft news standards. But now this is where we get 0:01:51.800 --> 0:01:57.120 to my confusion or misunderstand. So the case originally started 0:01:57.240 --> 0:02:00.920 as a challenge saying that the rule that was struck 0:02:00.960 --> 0:02:05.000 down should not have been struck down. The Trump administration's 0:02:05.040 --> 0:02:07.440 rule should still be in place. But it seems like 0:02:07.480 --> 0:02:09.400 it's gotten the scope of the case, it has gotten 0:02:09.520 --> 0:02:12.840 much bigger. But now that it's at the Supreme Court, 0:02:12.840 --> 0:02:15.960 what happened there and how did the scope expand? Okay, yeah, 0:02:16.040 --> 0:02:18.720 so this is where EPA and other petitioners say things 0:02:18.760 --> 0:02:22.080 get murky and hypothetical. So this petition was filed in 0:02:22.080 --> 0:02:24.560 response to the DC Circuit striking down the use rule. 0:02:24.960 --> 0:02:26.840 But when the court did that, it also struck down 0:02:26.880 --> 0:02:29.600 the basis that states and coal companies used to challenge 0:02:29.840 --> 0:02:33.160 Obama's Clean Power Plan rule, so namely, what can be 0:02:33.160 --> 0:02:35.920 considered the best system of emission reduction under the Clean 0:02:35.919 --> 0:02:39.320 Air Act? So Trump's rule kept that baseline inside the 0:02:39.360 --> 0:02:42.480 fence line for facilities. Obama's rule called for outside the 0:02:42.480 --> 0:02:45.880 fence line sector wide changes. So this petition is addressing 0:02:45.960 --> 0:02:49.600 that scope of regulation, trying to draw lines around what 0:02:49.680 --> 0:02:53.840 agencies have the authority to do to regulate these emissions. Meanwhile, 0:02:54.760 --> 0:02:57.120 there is no current rule on the book yet for 0:02:57.120 --> 0:02:59.960 this administration. So respondents are like, why are we suing 0:03:00.040 --> 0:03:02.400 over a rule that was never implemented and rules that 0:03:02.440 --> 0:03:05.120 have yet to be released? Right, But now it seems 0:03:05.160 --> 0:03:08.560 like because the DC Circuit issues such as sweeping ruling, 0:03:09.200 --> 0:03:11.720 now it's being challenged at the Supreme Court, and that 0:03:11.919 --> 0:03:15.480 sweeping ruling could sweep in the opposite direction. And it 0:03:15.560 --> 0:03:19.000 sounds like, based on what you've been reporting, and you 0:03:19.000 --> 0:03:21.600 know what the case, I guess what the briefs have 0:03:21.680 --> 0:03:25.400 been saying, we could potentially have a situation where the 0:03:25.400 --> 0:03:30.920 Supreme Court could rule in the other direction and strip 0:03:31.000 --> 0:03:35.640 the executive branch of its authority to regulate greenhouse gases 0:03:35.720 --> 0:03:39.240 full stop. What's going on here? Uh yeah, I mean 0:03:39.280 --> 0:03:42.360 that's certainly within the realm of possibility. Definitely the worst 0:03:42.360 --> 0:03:47.720 case scenario for EPA. Massachusetts for EPA said that, you know, 0:03:47.760 --> 0:03:51.240 greenhouse gas regulations do indeed fall to that too, you know, 0:03:51.240 --> 0:03:54.520 the Environmental Protection Agency. What's an issue in this case 0:03:54.600 --> 0:03:56.880 is the scope of that authority. So what this case 0:03:56.920 --> 0:04:02.120 could potentially do is caught off administrative ability to regulate 0:04:02.160 --> 0:04:05.200 greenhouse gases in a way that actually makes a difference 0:04:05.280 --> 0:04:10.080 toward meaningful emission reductions in a country with outsized contributions 0:04:10.120 --> 0:04:14.400 to planet warming emissions. So yeah, like mass Chuset's VPA 0:04:14.680 --> 0:04:16.719 may not get overturned. I don't think that's on the 0:04:16.800 --> 0:04:19.920 likelier end of things. You know, the worst case scenario 0:04:19.960 --> 0:04:25.400 we were talking about, but stemming regulation authority would make 0:04:25.400 --> 0:04:29.120 it harder to regulate under that authority that mass v. 0:04:29.200 --> 0:04:33.839 EPA granted. And let's talk about mass Chusetts VPA a 0:04:33.880 --> 0:04:35.880 little bit, just so we are both on the same page. 0:04:35.880 --> 0:04:38.200 You know, that's of course a very famous decision from 0:04:38.240 --> 0:04:40.920 the Supreme Court back in two thousand and seven, and 0:04:40.960 --> 0:04:44.680 it said that the EPA not only can regularly greenhouse 0:04:44.720 --> 0:04:48.240 gas emissions, but that it must through the Clean Air Act. 0:04:48.880 --> 0:04:51.560 Is it fair to say that mass Chusetts VPA kind 0:04:51.600 --> 0:04:55.880 of laid the groundwork for the way that the federal 0:04:55.920 --> 0:05:00.760 government regulates greenhouse gas emissions throughout the entire country? Is 0:05:00.839 --> 0:05:03.839 I mean, was it that fundamental? Oh? Yeah, definitely, I 0:05:03.839 --> 0:05:10.039 mean that's it. That case granted EPA its authority to 0:05:10.279 --> 0:05:14.400 even issue standards on greenhouse gas emissions. So I think 0:05:14.760 --> 0:05:16.800 a lot of court watchers that are really concerned about 0:05:16.800 --> 0:05:21.960 climate are watching any type of climate case GHG case 0:05:22.000 --> 0:05:23.880 that gets up to the High Court very very very 0:05:23.920 --> 0:05:46.040 closely because of that authority. And one of the things 0:05:46.040 --> 0:05:48.960 that you've been reporting on, and I think a lot 0:05:49.000 --> 0:05:52.120 of other people have been looking at, is this question 0:05:52.200 --> 0:05:56.039 of the major questions doctrine that could be a real 0:05:56.279 --> 0:05:59.240 big issue here. And I get the sense that that's 0:05:59.400 --> 0:06:04.680 this idea, the sort of judicial philosophy that if Congress 0:06:04.760 --> 0:06:08.520 wants a federal agency to do something, it will explicitly 0:06:08.600 --> 0:06:11.200 state that in a law. It won't, you know, be 0:06:11.360 --> 0:06:13.680 vague about it is that right? Is that could I 0:06:13.720 --> 0:06:16.160 come into play here? Yeah? This is I mean, this 0:06:16.240 --> 0:06:19.719 is definitely a case that some folks are worried that 0:06:19.760 --> 0:06:23.279 are really going to bring up major questions in a 0:06:23.320 --> 0:06:27.400 pretty major way as it were. But yeah, so it 0:06:27.640 --> 0:06:33.000 major questions is the idea that courts won't defer to 0:06:33.400 --> 0:06:38.960 an agency's interpretation of statute if Congress didn't explicitly it's 0:06:39.080 --> 0:06:44.120 particularly with issues that are of vast economic and political importance, 0:06:44.720 --> 0:06:48.120 if Congress has not explicitly given that authority. So this 0:06:48.200 --> 0:06:51.000 is you know, one of those issues that kind of 0:06:51.040 --> 0:06:54.080 falls into does the agency have authority here? Do we 0:06:54.120 --> 0:06:56.520 give them deference on what they say? The statute says 0:06:56.600 --> 0:07:00.320 kind of thing, right, And it's important here because the agency, 0:07:00.480 --> 0:07:03.520 when it was you know, developing its its regulations, was 0:07:03.600 --> 0:07:05.880 using the Clean Air Act, was saying, you know, greenhouse 0:07:05.880 --> 0:07:08.680 gas emissions are an air pollutant, and through the Clean 0:07:08.720 --> 0:07:11.080 Air Act, we have the authority to regulate that. But 0:07:11.160 --> 0:07:13.840 of course the Clean Air Act was written in the 0:07:13.880 --> 0:07:18.240 seventies when we barely or maybe didn't know that greenhouse 0:07:18.520 --> 0:07:21.320 gas emissions were a problem. And so I guess that's 0:07:21.360 --> 0:07:24.200 that's how the major questions doctrine comes into play here, right, right? 0:07:24.960 --> 0:07:28.160 So what are you hearing from the folks who are 0:07:28.160 --> 0:07:31.480 watching this case closely? Uh? You know, which way are 0:07:31.480 --> 0:07:34.000 they predicting that the winds are going to blow? Here? 0:07:34.520 --> 0:07:37.640 There are six Republican appointees on the Supreme Court, so 0:07:37.840 --> 0:07:41.200 I have to imagine that, you know, the petitioners here 0:07:41.200 --> 0:07:44.720 like they're odds. I mean, I've a lot of folks 0:07:44.760 --> 0:07:48.440 I spoke to were pretty surprised they even took the 0:07:48.480 --> 0:07:52.000 petition at all, again because we don't have a rule yet, 0:07:52.080 --> 0:07:54.400 Like yeah, and you know, since the clean power plane 0:07:54.720 --> 0:07:56.800 isn't even on the playing field anymore, so the fact 0:07:56.800 --> 0:07:58.920 that they took up the authority question is is really 0:07:58.920 --> 0:08:02.600 concerning for a lot of folks, is especially anxiously watching 0:08:02.640 --> 0:08:06.720 Biden's kind of like slow waiting into meaningful climate and 0:08:06.720 --> 0:08:09.880 climate justice policy and then in combination with a pretty 0:08:09.920 --> 0:08:13.360 stalemated Congress. And that's a good point. And I've forgot 0:08:13.400 --> 0:08:15.920 to mention that we didn't even get into this whole 0:08:15.920 --> 0:08:18.960 issue of standing, Like the petitioners here are you know, 0:08:19.640 --> 0:08:24.040 kind of read states that are you know, pro fossil 0:08:24.080 --> 0:08:29.960 fuel development, but they're trying to save a rule here 0:08:30.000 --> 0:08:31.960 that's not even on the books, Like who's what is 0:08:32.000 --> 0:08:35.120 their injury? What is how are they being harmed by 0:08:35.160 --> 0:08:37.800 the current status quo. It's like that's that's another thing 0:08:37.840 --> 0:08:39.360 that that's an issue here, is like do they even 0:08:39.400 --> 0:08:42.000 have the right to sue? Right? And that I mean 0:08:42.040 --> 0:08:45.440 that is certainly something that's been in every respondent brief 0:08:45.440 --> 0:08:49.360 and amicus, you know, that's come out in supportive, supportive, 0:08:49.440 --> 0:08:52.360 you know, the EPA side of things. But they are 0:08:53.320 --> 0:08:56.760 saying that they will be harmed by a sort of 0:08:56.760 --> 0:09:00.880 like sector wide approach to you know, massive changing the 0:09:00.880 --> 0:09:05.880 face of how utilities run through administrative regulation. But it 0:09:05.920 --> 0:09:08.280 sounds like the folks that you're talking to are saying 0:09:08.320 --> 0:09:10.319 that the fact that that the court even is taking 0:09:10.400 --> 0:09:12.760 up this case and is even hearing this case is 0:09:13.320 --> 0:09:16.240 itself a sign of which way they're they're gonna rule. 0:09:16.679 --> 0:09:20.040 I don't know if I can even read the tea 0:09:20.120 --> 0:09:22.480 leaves on how a justice is going to rule in 0:09:22.520 --> 0:09:25.440 this kind of situation. I mean, I few others I 0:09:25.440 --> 0:09:28.040 spoke to, or at least, you know, in terms of 0:09:28.400 --> 0:09:32.040 possible outcomes here somewhat hopeful that this could lead to 0:09:32.080 --> 0:09:35.360 some kind of regulatory certainty or you know, move to 0:09:35.440 --> 0:09:38.920 finally put this issue to bed and just draw boundaries 0:09:38.960 --> 0:09:41.080 on what can and cannot be done in this realm. 0:09:42.040 --> 0:09:44.640 To be honest, I don't think I'm not sure what 0:09:44.720 --> 0:09:47.679 to expect here. I think people are just anxiously watching, 0:09:47.760 --> 0:09:52.480 and some folks are pretty worried. Yeah. Finally, let's talk 0:09:52.480 --> 0:09:55.440 about what would happen if, you know, the court rules 0:09:56.320 --> 0:09:59.640 in favor of the petitioners here and strips the EPA 0:09:59.679 --> 0:10:04.600 of a lot or most or all of its climate 0:10:04.679 --> 0:10:10.079 regulatory authority. What would the future look like in that scenario? 0:10:10.280 --> 0:10:12.800 I mean, it would essentially be up to Congress to 0:10:13.480 --> 0:10:17.480 you know, regulate greenhouse gases if it should want to. 0:10:17.600 --> 0:10:20.840 I mean, am I interpreting that right? Would Congress have 0:10:20.920 --> 0:10:25.320 to sort of pass new laws to regulate greenhouse gases? 0:10:25.760 --> 0:10:29.000 I mean yeah? I mean under the you know, EPA's 0:10:29.000 --> 0:10:32.600 worst case scenario, as we discussed before, completely worst worst 0:10:32.640 --> 0:10:36.480 case cuts off Biden's ability to regulate greenhouse gases at all, 0:10:37.000 --> 0:10:40.480 one tier down. It ties his hands pretty significantly for 0:10:40.520 --> 0:10:43.760 meaningful reductions. With Congress then in charge of picking up 0:10:43.800 --> 0:10:48.000 that slack. I think we can likely predict how that 0:10:48.080 --> 0:10:50.720 would play out. I think build back better wrangling was 0:10:51.160 --> 0:10:55.400 pretty much our early taste of that. In other words, 0:10:55.400 --> 0:10:58.360 that that, yeah, that like Congress has no appetite to 0:10:58.679 --> 0:11:03.079 really or no ability, no consensus to pass new climate laws. 0:11:03.120 --> 0:11:05.000 Is that kind of what you're getting at. Yeah, I 0:11:05.000 --> 0:11:09.000 mean there's definitely appetite, sure among many many lawmakers, there's 0:11:09.160 --> 0:11:13.080 appetite to move forward on climate, but yeah, exactly, ability 0:11:13.160 --> 0:11:17.160 to get the job done a different story. All right, Well, 0:11:17.679 --> 0:11:20.679 the oral arguments they're going to be really interesting. Maybe 0:11:20.679 --> 0:11:23.440 we'll get kind of a preview on where the justices 0:11:23.480 --> 0:11:27.960 are thinking and how they view this case. But until then, 0:11:28.120 --> 0:11:31.679 thank you so much Jen for coming on the podcast. 0:11:31.760 --> 0:11:34.360 And after the arguments, we'll have you back and we'll 0:11:34.400 --> 0:11:36.640 talk about how it went. Sounds good, looking forward to it. 0:11:38.040 --> 0:11:40.200 And that's it for today's episode of Parts per Billion. 0:11:40.280 --> 0:11:42.600 If you want more environmental news, check us out on Twitter. 0:11:42.720 --> 0:11:44.520 We use it pretty easy to remember handle it, just 0:11:44.600 --> 0:11:47.880 add environment. I met David b. Schultz. If you want 0:11:47.920 --> 0:11:50.640 to chat with me, that's b as in Brian, which 0:11:50.679 --> 0:11:53.920 is actually my own name. Today's episode of Parts per 0:11:53.960 --> 0:11:56.640 Billion was produced by myself, David Bryan Schultz. Parts per 0:11:56.640 --> 0:11:59.079 Billion was created by Jessica Coombs and Rachel Dagle and 0:11:59.200 --> 0:12:01.679 is edited by Rebecca Baker and Chuck McCutcheon, and our 0:12:01.679 --> 0:12:07.320 executive producer is Josh Block. Thanks everyone for listening. You 0:12:07.360 --> 0:12:09.440 don't need to be a judge to be interested in 0:12:09.480 --> 0:12:13.080 our nation's laws and legal institutions, just like you don't 0:12:13.120 --> 0:12:15.120 need to have a law degree to be curious about 0:12:15.120 --> 0:12:18.240 the inner workings of courts, law firms, and law schools. 0:12:18.640 --> 0:12:21.480 That's where we come in. My name's Adam Allington and 0:12:21.559 --> 0:12:24.280 I'm the host of Uncommon Law, a podcast from the 0:12:24.280 --> 0:12:28.920 Bloomberg Industry Group. Uncommon Law is where public policy, storytelling, 0:12:29.080 --> 0:12:33.040 and the law are combined. 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