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Speaker 1: Hey, drilled listeners and damages listeners. This is a special

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Speaker 1: episode that's dropping in both feeds because there's some big,

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Speaker 1: important legal news happening in the climate world this week.

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Speaker 1: On Monday morning, this week, the Supreme Court heard oral

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Speaker 1: arguments in the West Virginia versus EPA case. This is

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Speaker 1: a very weird situation. The case started as an argument

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Speaker 1: about the Clean Power Plan. That's an Obama administration policy

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Speaker 1: that was in fact never implemented. Why is this case

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Speaker 1: moving forward? Good question. Supreme Court could still decide not

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Speaker 1: to rule in the case. That's an argument that was

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Speaker 1: made by the EPA that this case really shouldn't be

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Speaker 1: in the courts anymore. But they spend an awful lot

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Speaker 1: of time asking questions, so that seems unlikely. The good

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Speaker 1: news is they don't seem inclined to chuck out previous

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Speaker 1: rulings like aep versus Connecticut and Massachusetts versus EPA, which

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Speaker 1: had to do with whether or not the EPA was

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Speaker 1: allowed to regulate greenhouse gases. That's good. That was a

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Speaker 1: big fear going into this. The bad news this obscure

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Speaker 1: law that used to almost never come up in the

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Speaker 1: Supreme Court, but suddenly has been a lot in the

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Speaker 1: last couple of years, came up a bunch, especially in

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Speaker 1: the conservative justices, questioning that law is called the Major

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Speaker 1: Questions doctrine. Sounds really boring, possibly pretty scary. We're going

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Speaker 1: to get into that and what happened in this case

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Speaker 1: and what could happen, what it all means with a

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Speaker 1: couple of experts Jason Rylander from the Center for Biological

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Speaker 1: Diversity and Richard Revez, a professor at New York and

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Speaker 1: Richard Revez, professor at NYU Law. And of course I

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Speaker 1: got up early to stream the oral arguments and tape them,

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Speaker 1: so we'll give you a little taste of what folks

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Speaker 1: were saying in court too. That's all coming yep, after

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Speaker 1: this quick break. I'm Ami Westervelt and this is drilled

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Speaker 1: and or damages, depending on where you're listening.

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Speaker 2: Hi, I'm Richard Rivez. I'm a professor of Environmental law

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Speaker 2: at New York University School of Law, where I direct

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Speaker 2: the Instant for Policy Integrity, which is a think tank

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Speaker 2: and advocacy organization working on clean energy and climate change

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Speaker 2: and environmental issues.

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Speaker 3: I'm Jason Rylander. I'm an attorney with the Center for

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Speaker 3: biological diversity in their Climate law institute.

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Speaker 1: Great, And why, Jason, are we going to hear arguments

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Speaker 1: about the Clean Power Plan a policy that was never implemented.

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Speaker 3: That's a very good question, and I think the first

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Speaker 3: issue that the Court is going to have to take

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Speaker 3: up is whether they should be hearing this case at all.

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Speaker 3: As you noted, the Clean Power Plan has never been

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Speaker 3: in effect. It was developed under the Obama administration, it

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Speaker 3: was repealed by the Trump administration, and has never ever

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Speaker 3: become law. So the Court is basically hearing an argument

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Speaker 3: about pollution regulations that don't exist.

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Speaker 2: Well before the oral argument, I had the very strong

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Speaker 2: sense that the right thing for the Court to do

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Speaker 2: was not to decide this case and to dismiss it.

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Speaker 2: Supreme Court as a mechanism for dismissing cases is improvidently granted,

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Speaker 2: and it's not something it does frequently, but on average

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Speaker 2: it's been doing it about twice a year, and this

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Speaker 2: case seems like an excellent can to day for that

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Speaker 2: disposition because there is no regulation in place, the clean

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Speaker 2: power plant is not in place, and the Affordable Clean

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Speaker 2: Energy Rule is not in place. A clean power plant,

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Speaker 2: of course, was the Obama administration regulation of the greenhouse

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Speaker 2: gas emissions of existing power plants and the Affordable Clean

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Speaker 2: Energy Rule was a Trump administration's toothless and potentially counterproductive replacement.

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Speaker 2: But neither are in place, and neither would go back

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Speaker 2: into effect no matter what the CORE does. So essentially,

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Speaker 2: no matter what the Corp does, there's not going to

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Speaker 2: be a clean power plant in place, and there's not

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Speaker 2: going to be an affordable Clean Energy rule in place.

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Speaker 2: So all the Court could do is give EPA advice.

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Speaker 2: This is known in this lingo as an advisory opinion

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Speaker 2: on what its future rule might look like. But the

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Speaker 2: federal courts don't have the authority to issue advisory opinions.

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Speaker 2: That's been clear since essentially the beginning of Republic. So

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Speaker 2: going into the case, I was, you know, the strong

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Speaker 2: sense that this was the right thing for the Court

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Speaker 2: to do. Coming out of the case, I still think

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Speaker 2: that that is the right thing for the Court to do,

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Speaker 2: for exactly the same reason that I thought about that before.

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Speaker 2: But I you know, have to say that while these

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Speaker 2: issues were discussed, it's not clear to me that five

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Speaker 2: justices would find that approach compelling.

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Speaker 1: Can I have you define for people the major Questions

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Speaker 1: doctrine because that came up a bit, and I think

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Speaker 1: the general public might not know what that means.

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Speaker 2: Yeah, the general public would be well served to know

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Speaker 2: what that means. So the Major Question doctrine is a

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Speaker 2: doctrine that was used in the past extremely rarely. I

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Speaker 2: mean the Supreme Court maybe invoked in once every five years,

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Speaker 2: only five times before this past year in its whole

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Speaker 2: history starting around nineteen eight in cases that were actually

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Speaker 2: quite exceptional. But in the last couple of years, it's

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Speaker 2: a doctrine that's been invoked promiscuously by opponents of regulation.

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Speaker 3: And the Major Questions doctrine is this offshoot of the

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Speaker 3: non delegation doctrine, and basically what it says is that

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Speaker 3: Congress has to speak clearly in delegating authority to an

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Speaker 3: agency for that agency to be able to take action.

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Speaker 3: An agency can't do something without congressional authorization.

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Speaker 2: If an agency decision is going to have vast economic

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Speaker 2: or political significance, it needs to be authorized explicitly by Congress,

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Speaker 2: and that the agents shouldn't be doing an under kind

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Speaker 2: of delegated authority in a somewhat open ended statute. But

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Speaker 2: now I mean this term the Court has already invoked

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Speaker 2: it in striking down the OSHA vaccine and testing mandate,

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Speaker 2: striking down the eviction moratorium, and it obviously played a

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Speaker 2: big role in the argument yesterday. So it's become you know,

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Speaker 2: it's gone from something quite extraordinary that happens where the

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Speaker 2: Court really only deals with it every several years, every

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Speaker 2: five years, so something that maybe ends up as a

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Speaker 2: central issue in the Supreme Court multiple times a year.

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Speaker 2: And this whole transformation has happened very quickly, i'd say,

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Speaker 2: in the last couple of years.

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Speaker 3: And most of the briefing in this case is focusing

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Speaker 3: on just this issue, the sort of major questions doctrine

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Speaker 3: and whether the EPA can apply its regulations, you know,

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Speaker 3: broadly to address, you know, not just emissions that are

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Speaker 3: coming directly from power plants themselves, but whether they can

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Speaker 3: create a broader system of emissions reductions that would be

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Speaker 3: more effective. And the interesting thing about it is that

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Speaker 3: the states and most of the power companies are not

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Speaker 3: impacted by this regulation at all. I mean, I think,

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Speaker 3: to put it simply, there's clearly an anti regulatory appetite

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Speaker 3: amongst certain justice of this Court, and we've seen that

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Speaker 3: in a number of different cases dealing with the extent

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Speaker 3: of agency authority. And this idea that they can use

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Speaker 3: this Major Questions doctrine to kind of look at a

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Speaker 3: regulation and decide in the abstract whether Congress granted authority

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Speaker 3: to address that issue without even really looking at an

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Speaker 3: actual rule is bizarre. It is an expansion of judicial

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Speaker 3: power in a way that is really pretty inappropriate. And

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Speaker 3: we've seen commentators kind of across the political spectrum warning

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Speaker 3: against this expanded use of the Major Questions doctrine to

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Speaker 3: attack agency rulemaking, but that seems to be where a

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Speaker 3: few of the justices want to go.

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Speaker 1: I've heard it described as sort of a new tool

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Speaker 1: that conservatives are, well, I know, it's not a new doctrine,

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Speaker 1: but it's newly popular.

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Speaker 2: Yeah, the very expensive use of it for what you know,

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Speaker 2: would have been thought of as like run of the

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Speaker 2: mill regulations. EPA has been regular lating emissions of power

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Speaker 2: plans literally since the early days of the Cleaner Act

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Speaker 2: in nineteen seventy, and now this becomes kind of a

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Speaker 2: big thing, and it's a product exclusively of a significant

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Speaker 2: change in the composition of the court.

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Speaker 1: Okay, I'm going to play a little bit from the

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Speaker 1: oral arguments you'll hear, just as Sodoma r here questioning

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Speaker 1: one of the attorneys for West Virginia, Lindsay C.

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Speaker 4: Massachusetts versus EPA, said that carbon dioxide is a pollutant

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Speaker 4: under the Clean Air Act. So that's clear, right.

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Speaker 5: We're not challenging that.

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Speaker 4: Correct, all right, You're not challenging aep Connecticut, where we

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Speaker 4: said that Congress is clearly delegated to the EPA the

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Speaker 4: discretion about whether and how to break the late carbon dioxide. Correct.

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Speaker 5: We are not disputing the portion that said Congress spoke

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Speaker 5: to whether and how. We are disputing that how means

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Speaker 5: that EPA can do that.

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Speaker 4: I understand what you're saying, but this is really a

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Speaker 4: step further than anything we have said before. All of

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Speaker 4: our other cases, whether it's regulation of tobacco or regulation

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Speaker 4: of evictions under major Questions doctrine, have not addressed the how.

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Speaker 4: Now we're going to the how.

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Speaker 2: Know.

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Speaker 3: I think the worst case scenario here is that they

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Speaker 3: have an EPA's authority in a way that is going

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Speaker 3: to make it more difficult for the Biden administration and

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Speaker 3: future administrations to regulate effectively under Section one eleven of

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Speaker 3: the Clean Air Act. The good news is Clean Air

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Speaker 3: Act is broader than that, and there are a lot

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Speaker 3: of other ways that we can get at greenhouse gas pollutions.

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Speaker 3: And we also know that you know, greenhouse gas pollutions

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Speaker 3: emerge from things other than stationary coal and power plants.

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Speaker 2: Well, I think this decision is probably going to mostly,

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Speaker 2: if at all, affect EPA's authority to regulate the greenhouse

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Speaker 2: gas emissions of the power sector because regular greenhouse gas

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Speaker 2: emissions of the power sector has some peculiarities that don't

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Speaker 2: arise in their contexts. So you know, at old times,

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Speaker 2: the supply of electricity and demand for electricity have to

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Speaker 2: be balanced. You know, if they're not balanced, then you know,

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Speaker 2: bad things are going to happen to the grid, like

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Speaker 2: you know, blackouts or you know, the we will get

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Speaker 2: damaged and so so. And that's not true for other products.

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Speaker 2: So for example, you know, if some factory produced some

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Speaker 2: manufactured good and the good doesn't sell in the market

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Speaker 2: right away, you know, the factory can like send it

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Speaker 2: to its warehouse and it can sit in the warehouse

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Speaker 2: for six months. You can't do that with electricity, and

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Speaker 2: so then creates special rectory challenges that you know, come

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Speaker 2: from the functioning of the grid, and they don't arise

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Speaker 2: in other contexts. Now you know again, you know, the

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Speaker 2: Court could write a very broad opinion that could have

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Speaker 2: all kinds of other repercussions. But I think it will

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Speaker 2: be hard for the Court to avoid writing an opinion

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Speaker 2: that focuses significant attention on the structure of the grid.

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Speaker 2: And if it does that, probably the main impact will

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Speaker 2: be on the greenhouse gas regulation of the power sector.

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Speaker 2: But having said that, you know, each of these opinions

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Speaker 2: reveals a mood about the Court, And if the Court

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Speaker 2: isn't any kind of expansive Major Questions mood, which it

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Speaker 2: might be, then you've expected next year there'll be five

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Speaker 2: other Major Questions cases in which, in other contexts, it

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Speaker 2: will do other things to constrain the ability of federal

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Speaker 2: regultary agencies to address pressing health, environmental, climate change, consumer

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Speaker 2: I've heard.

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Speaker 1: The sort of recent embrace of the Major Questions doctrine

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Speaker 1: referred to as as part of an overall strategy to

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Speaker 1: get to a blockner era, And I I wonder if

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Speaker 1: you think that's accurate or you know, being dramatic and

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Speaker 1: be if you could summarize for people. What that means, I.

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Speaker 2: Would say that the core could be characterized as being

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Speaker 2: interest in returning us to a prem deal era, you know,

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Speaker 2: because basically regultary agencies, I mean they pre existed the

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Speaker 2: New Deal for sure, and they go back to the

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Speaker 2: nineteenth century. But the big explosion of regtree agencies, the

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Speaker 2: Federal Trade Commission, the Securities and Exchange Commission, the Federal

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Speaker 2: Communications Commission, those agencies were established during the New Deal,

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Speaker 2: I mean in response to the Great Depression in part,

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Speaker 2: and that's when kind of the big significant pieces of

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Speaker 2: the business of government started being done by agencies in

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Speaker 2: the executive branch. And I think that the efforts now

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Speaker 2: might make it difficult for agencies to do that because

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Speaker 2: typically Congress delegated to agencies fairly significant discretion, and the

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Speaker 2: agencies then acted under that discretions. For example, some on

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Speaker 2: the statutes and deal statutes that regulate in the public interest,

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Speaker 2: and the agency determined what the public interest was and

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Speaker 2: thereby took care of its obligation under the statute. But now,

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Speaker 2: you know, open ended delegations of that sort tend to

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Speaker 2: be run through major questions lens. And then the court

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Speaker 2: has been the courts that have done this have been

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Speaker 2: very quick to find economic and political significance. And often

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Speaker 2: the political significance just happens to be that there are

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Speaker 2: you know, a number of states on each side of litigation,

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Speaker 2: or there's controversy around the issue. But these days, with

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Speaker 2: the country this divided, there's political over practically anything an

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Speaker 2: agency does. So we've come up with a test that

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Speaker 2: is in the eye of the beholder, and a beholder

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Speaker 2: who's unsympathetic to the regultary enterprise is going to be

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Speaker 2: able to say that the regulation fits within the kind

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Speaker 2: of major questions rubric. So I would put it as

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Speaker 2: a return to before the New Deal. I mean the

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Speaker 2: Lockner areas actually goes back further. It was a significant

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Speaker 2: decision Supreme Court back right at the beginning of the

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Speaker 2: twentieth century, where day's back to nineteen oh five, where

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Speaker 2: the court was very intrusive and validating federal and state statutes,

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Speaker 2: mostly ones that regulated working conditions, and kind of the

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Speaker 2: New Deal era brought an end to that. I mean,

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Speaker 2: this is a little different because it's being struck down

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Speaker 2: right now are not the statutes but regulations promulgated under

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Speaker 2: the statutes. Although the parallel effort, which is probably not

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Speaker 2: an issue in this case, but you know it's kind

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Speaker 2: of related, is that the Court there are justices were

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Speaker 2: appeared to be interested in reviving the non delegation doctrine,

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Speaker 2: which would lead to striking down statutes.

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Speaker 1: Can you explain a little bit about the non delegation doctrine?

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Speaker 2: Well, the non delegation doctrine prohibits delegations to agencies that

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Speaker 2: are so broad that the agency doesn't have an intelligible

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Speaker 2: principle to guide the exercise of its discretion. But the

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Speaker 2: courts so far have been quite receptive to finding limiting

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Speaker 2: principles and have struck very few things. But there are

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Speaker 2: justices who I think want to revive a more robust

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Speaker 2: use of the non delegation doctrine and who might therefore

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Speaker 2: either recast it in ways in which requires congressional decision

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Speaker 2: on a much broader set of issues, and has been

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Speaker 2: Cruisin's new deal. We haven't seen that basically. The Supreme

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Speaker 2: Court has struck down to cases and non delegation doctrine

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Speaker 2: its history, both in nineteen thirty six, never before, and

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Speaker 2: never after. But there is significant concern that a parallel

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Speaker 2: effort alongside this kind of robust use of the major

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Speaker 2: questions doctrine will be a very aggressive use of the

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Speaker 2: non delegation doctrine. I don't think this case provides a

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Speaker 2: good vehicle for that, and it wasn't significantly brief or argued,

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Speaker 2: So I think this case is more likely to end

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Speaker 2: up exploring the major questions doctrine. But you can certainly

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Speaker 2: imagine a subsequent case in which just as were opposed

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Speaker 2: to regulation deciding that a revival of the non delegation doctrine.

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Speaker 1: I'm going to play another clip here on this major

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Speaker 1: questions and non delegation issue. You'll hear Justice Amy Conny

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Speaker 1: Barrett here questioning Lindsay C again what is.

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Speaker 6: The daylight between the major questions doctrine and the non

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Speaker 6: delegation doctrine. So at the beginning of your argument, you

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Speaker 6: talked about how the major questions doctrine can be understood,

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Speaker 6: as you know, inspired by the separation of powers, and

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Speaker 6: you talked about avoidance and non delegation.

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Speaker 4: So if the.

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Speaker 6: Idea is that Congress shouldn't delegate major questions to an agency,

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Speaker 6: is there any daylight between them?

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Speaker 5: I think certainly that is a broad view of the

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Speaker 5: non delegation doctrine. It's not necessary for the court to

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Speaker 5: go that far to say whether Congress could delegate these questions,

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Speaker 5: because here it's clear Congress didn't. So I think the

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Speaker 5: daylight between the two is really this question of has

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Speaker 5: Congress purported to delegate the major questions clear statement? Can?

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Speaker 5: It is getting at that question, what did Congress think

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Speaker 5: it was doing? What did Congress actually do with the

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Speaker 5: words it put in the statute? And then it would

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Speaker 5: be a separate question to say if Congress clearly said, EPA,

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Speaker 5: you may go forward and exercise this transformative power, that

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Speaker 5: might be a separate non delegation question.

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Speaker 1: Okay, that's it for this time. Thanks for listening. I

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Speaker 1: mentioned last time that we're not going to be doing

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Speaker 1: these newsy update episodes in the main feed anymore. We're

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Speaker 1: that big mainstream outlets would just higher climate reporters if

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Speaker 1: Damages from now till the end of the year. Thanks

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Speaker 1: at the bar back the barrel backt deep barrel basket