WEBVTT - West Virginia v EPA : Worst-Case Scenario and What Comes Next 0:00:13.560 --> 0:00:17.280 The Supreme Court was expected to rule this morning in 0:00:17.320 --> 0:00:22.040 the case West Virginia versus EPA. They did not issue ruling. 0:00:22.360 --> 0:00:25.840 They may issue one tomorrow. It might be Wednesday, or 0:00:25.920 --> 0:00:30.080 maybe later in the week. Nobody knows. Complicating matters further, 0:00:30.360 --> 0:00:33.319 given that it's been held to the end of this 0:00:33.520 --> 0:00:37.600 current Supreme Court session, folks were speculating that it will 0:00:37.720 --> 0:00:42.640 either be a remarkably terrible ruling or that they'll decide 0:00:42.680 --> 0:00:44.920 that actually, they really shouldn't be ruling at all in 0:00:44.920 --> 0:00:48.880 this case. I spoke with Richard Revez, a law professor 0:00:48.960 --> 0:00:51.960 at NYU School of Law and director of the Institute 0:00:52.000 --> 0:00:57.000 for Policy Integrity there about that option earlier this year, well. 0:00:56.880 --> 0:01:00.040 Before the oral argument, I had the very strong and 0:01:00.640 --> 0:01:04.520 that the right thing for the Court to do was 0:01:04.560 --> 0:01:09.400 not to decide this case and to dismiss it. Supreme 0:01:09.440 --> 0:01:13.280 cord as a mechanism for dismissing cases is improvidently, granted, 0:01:14.080 --> 0:01:17.160 and it's not something it does frequently, but on average 0:01:17.160 --> 0:01:21.600 it's been doing it about twice a year in recent years. 0:01:22.120 --> 0:01:26.160 In this case seems like an excellent candidate for that 0:01:26.680 --> 0:01:32.479 disposition because there is no regulation in place. The Clean 0:01:32.520 --> 0:01:39.199 Power Plan is not in place, and the Affordable Clean 0:01:39.280 --> 0:01:41.040 Energy Rule is not in place. A clean power plant, 0:01:41.080 --> 0:01:45.040 of course, was the Abomba administration regulation of the greenhouse 0:01:45.040 --> 0:01:49.320 gas emissions of existing power plans, and the Affordable Clean 0:01:49.400 --> 0:01:55.040 Energy Rule was the Trump administration's toothless and potentially counterproductive replacement. 0:01:56.400 --> 0:01:59.120 But neither are in place, and neither would go back 0:01:59.160 --> 0:02:03.000 into effect no matter what the Court does. So essentially, 0:02:03.920 --> 0:02:06.480 no matter what the Court does, there's not going to 0:02:06.480 --> 0:02:08.400 be a clean power plant in place. There's not going 0:02:08.440 --> 0:02:11.079 to be an Affordable Energy rule in place. So all 0:02:11.120 --> 0:02:16.680 the court could do is give EPA advice. This is 0:02:16.880 --> 0:02:20.000 known in this lingo as an advisory opinion on what 0:02:20.040 --> 0:02:23.360 its future rule might look like. But the federal courts 0:02:23.360 --> 0:02:27.519 don't have the authority to issue advisory opinions. That's been 0:02:27.600 --> 0:02:33.720 clear since essentially the beginning of the Republic. So going 0:02:33.760 --> 0:02:36.160 into the case, I was, you know, the strong sense 0:02:36.200 --> 0:02:38.280 that this was the right thing for the court to. 0:02:38.320 --> 0:02:46.280 Do, and what was your sense of the oral arguments 0:02:46.320 --> 0:02:48.480 and where this seems to be headed. 0:02:49.160 --> 0:02:51.040 Well, I mean, coming out of the case, I still 0:02:51.080 --> 0:02:53.480 think that that is the right I think for the 0:02:53.520 --> 0:02:56.200 Court to do, for exactly the same reason that I 0:02:56.320 --> 0:03:01.520 thought about that before the argument. But I have to 0:03:01.720 --> 0:03:08.040 say that while these issues were discussed, it's not clear 0:03:08.160 --> 0:03:15.360 to me that five justices would find that approach compelling. 0:03:15.800 --> 0:03:18.239 You never know, you can be surprised. You can't read 0:03:18.280 --> 0:03:21.280 too much from the questions in oral argument, but it 0:03:21.320 --> 0:03:24.760 didn't look like that way of thinking about the case 0:03:25.080 --> 0:03:28.679 was foremost in the minds of five of the justices. 0:03:29.000 --> 0:03:33.440 Attorney Jason Rylander from the Center for Biological Diversity expanded 0:03:33.480 --> 0:03:34.200 on this idea. 0:03:34.680 --> 0:03:37.680 Yeah, it's really interesting. Back when the Clean Power Plan 0:03:38.120 --> 0:03:42.680 was originally developed by the Obama administration, industry groups sued 0:03:42.720 --> 0:03:47.080 over it, and the litigation was ongoing, but the Supreme 0:03:47.080 --> 0:03:51.080 Court reached out and issued an unprecedented stay without even 0:03:51.120 --> 0:03:54.600 allowing the DC Circuit to complete oral arguments or issue 0:03:54.680 --> 0:03:58.760 or ruling. So, for whatever reason, the contours of EPA's 0:03:58.760 --> 0:04:02.160 authority under the Clean Air Act seemed to be of 0:04:02.280 --> 0:04:05.680 interest to this court. And here again they've taken a 0:04:05.720 --> 0:04:08.960 case that they really don't have to take because the 0:04:08.960 --> 0:04:12.480 Biden administration has pledged that it's going to develop its 0:04:12.640 --> 0:04:17.400 own rules for regulating stationary power plant missions and that 0:04:17.400 --> 0:04:20.000 those rules may not look anything like either the Clean 0:04:20.040 --> 0:04:22.560 Power Plan or the Affordable Clean Energy Plan that the 0:04:22.560 --> 0:04:25.920 Trump administration developed, which is also not in effect. So 0:04:25.960 --> 0:04:28.280 the real concern here is that this Court is basically 0:04:28.360 --> 0:04:32.839 issuing an advisory opinion about EPA's authority in the absence 0:04:32.880 --> 0:04:35.560 of an actual rule in front of it for it 0:04:35.600 --> 0:04:38.120 to review. Court has already ruled in a couple of 0:04:38.160 --> 0:04:43.200 different cases that EPA has authority to regulate greenhouse gases. 0:04:43.880 --> 0:04:47.440 They said so first in Massachusetts vi. EPA. They said 0:04:47.440 --> 0:04:50.920 so in AP versus Connecticut case, and they also said 0:04:51.000 --> 0:04:54.320 so in another case that came a couple years later. 0:04:55.080 --> 0:04:57.960 And so you know, to the extent that the Court 0:04:58.000 --> 0:05:00.280 wants to get into these sort of major questions about 0:05:00.279 --> 0:05:03.880 what Congress has spoken clearly to in terms of authority 0:05:03.920 --> 0:05:07.720 for agencies to regulate, that big question has already been addressed. 0:05:08.000 --> 0:05:09.960 What we're really getting into now is sort of the 0:05:10.000 --> 0:05:15.280 weeds of whether Section one eleven allows EPA to create 0:05:15.800 --> 0:05:20.520 a best system of emissions reduction that would lead to 0:05:20.560 --> 0:05:24.880 the most effective and efficient reductions in greenhouse gas pollution. 0:05:25.560 --> 0:05:28.359 And that's the kind of question that is usually left 0:05:28.400 --> 0:05:29.600 to agency discretion. 0:05:30.320 --> 0:05:33.320 Like Revez explained, there is precedent for the Court to 0:05:33.360 --> 0:05:36.640 opt not to rule in cases where it really makes 0:05:36.720 --> 0:05:39.719 no sense for it too. But given all the other 0:05:40.160 --> 0:05:44.559 norms these justices are breaking, it's hard to believe they'll 0:05:44.600 --> 0:05:48.800 go that route, especially given that Justices Kavanaugh and Barrett 0:05:48.960 --> 0:05:53.039 consistently brought up something called the major questions doctrine during 0:05:53.160 --> 0:05:55.599 oral arguments. Here's Rylander again. 0:05:55.920 --> 0:05:59.719 I think, to put it simply, there's clearly an anti 0:05:59.760 --> 0:06:03.800 rede regulatory appetite among certain justices of this Court, and 0:06:04.200 --> 0:06:06.960 we've seen that in a number of different cases dealing 0:06:07.000 --> 0:06:10.640 with the extent of agency authority. And this idea that 0:06:10.680 --> 0:06:13.880 they can use this major Questions doctrine to kind of 0:06:13.920 --> 0:06:18.400 look at a regulation and decide in the abstract whether 0:06:18.520 --> 0:06:22.119 Congress granted authority to address that issue without even really 0:06:22.160 --> 0:06:27.160 looking at an actual rule is bizarre. It is an 0:06:27.200 --> 0:06:29.880 expansion of judicial power in a way that is really 0:06:29.920 --> 0:06:33.560 pretty inappropriate. And we've seen commentators kind of across the 0:06:33.560 --> 0:06:38.239 political spectrum warning against this expanded use of the Major 0:06:38.320 --> 0:06:41.800 Questions doctrine to attack agency rulemaking, but that seems to 0:06:41.839 --> 0:06:44.160 be where a few of the justices want to go. 0:06:44.920 --> 0:06:47.760 This is part of the general right wing project to 0:06:47.880 --> 0:06:52.200 attack the so called administrative state. If you spend any 0:06:52.240 --> 0:06:57.680 time at all online, you might hear conservatives say things like, well, actually, 0:06:57.960 --> 0:07:03.240 regulatory agencies are unconstitutional. In other words, the Constitution doesn't 0:07:03.279 --> 0:07:07.400 allow for Congress to hand over its powers to agencies. 0:07:08.240 --> 0:07:11.880 The argument for agencies, of course, has historically been that 0:07:12.280 --> 0:07:15.880 legislators can't possibly be experts on everything, and it makes 0:07:15.920 --> 0:07:17.680 a certain amount of sense to keep the nuts and 0:07:17.720 --> 0:07:21.960 bolts of applying legislation free of the sort of grandstanding 0:07:22.080 --> 0:07:26.640 and influence peddling that has been a hallmark of American politics. 0:07:26.920 --> 0:07:29.960 But for many conservatives, not only is there no need 0:07:30.080 --> 0:07:34.239 for the EPA to develop an emissions reduction plan absent 0:07:34.360 --> 0:07:38.280 explicit instructions to do so from Congress, but also there's 0:07:38.320 --> 0:07:41.840 really no need for an EPA at all. You might 0:07:41.880 --> 0:07:44.120 recall an episode we put out earlier this year with 0:07:44.240 --> 0:07:47.880 Lisa Greeves. She's a former Senate investigator who went on 0:07:47.920 --> 0:07:50.920 to run the Center for Media and Democracy for several 0:07:51.000 --> 0:07:55.520 years before starting her own research firm, True North. Lisa 0:07:55.560 --> 0:07:58.800 has been tracking the right wing project to take over 0:07:58.960 --> 0:08:03.960 the judiciary almost since its inception. Here she is explaining 0:08:04.120 --> 0:08:07.760 some of these structural changes that cases like West Virginia 0:08:07.840 --> 0:08:10.440 versus EPA are driving towards Yeah. 0:08:10.440 --> 0:08:12.440 I mean, they've declared, you know, this war on the 0:08:12.440 --> 0:08:15.960 so called administrative state. Obviously there's roots of that in Reagan, 0:08:16.120 --> 0:08:18.480 and some of the lawyers who were active then, who 0:08:18.600 --> 0:08:22.480 became judges, and some of the people who are in 0:08:22.480 --> 0:08:25.920 the judiciary have been you know, in my view, very partisan, 0:08:26.640 --> 0:08:30.640 very right wing, you know, sort of politicians and rogues 0:08:30.680 --> 0:08:34.320 who are attempting to restructure the modern American state through 0:08:34.440 --> 0:08:40.400 judicial rulings. But you know, eighty percent of the of 0:08:40.480 --> 0:08:43.160 the Supreme Court has been appointed by Republicans, and they 0:08:43.200 --> 0:08:49.920 just haven't been doctrinaire enough for these you know, very 0:08:49.960 --> 0:08:52.040 elite reactionaries like Leonard Leo. 0:08:52.400 --> 0:08:55.960 Leonard Leo of course, ran the Federalist Society for decades. 0:08:56.120 --> 0:08:59.120 It's a group of conservative lawyers and justices who have 0:08:59.240 --> 0:09:02.560 been integral to the project to use the judicial system 0:09:02.679 --> 0:09:07.800 to further a conservative agenda. Leo himself hand picked many 0:09:07.880 --> 0:09:11.679 of the justices on the Supreme Court bench today. Lisa 0:09:11.720 --> 0:09:14.400 Graves helped to make the general public more aware of 0:09:14.440 --> 0:09:18.120 the Federalist Society's role in picking justices when they began 0:09:18.200 --> 0:09:22.000 telling Trump who to nominate. Leo and the Federalist Society 0:09:22.080 --> 0:09:25.959 are also deeply entwined with another key component of the 0:09:26.040 --> 0:09:31.640 right wing legal machine, RAGA, the Republican Attorney's General Association. 0:09:32.400 --> 0:09:35.440 That organization was created as a reaction to the tobacco 0:09:35.520 --> 0:09:39.280 litigation in the nineteen nineties, which was kicked off by 0:09:39.280 --> 0:09:44.360 a Democratic attorneys general. At the time, Democrats outnumbered Republicans 0:09:44.400 --> 0:09:48.160 in state attorneys general offices almost two to one. The 0:09:48.160 --> 0:09:53.520 Republican attorneys general in Alabama, South Carolina, and Texas decided 0:09:53.559 --> 0:09:56.400 to form a group that would dedicate itself to getting 0:09:56.400 --> 0:09:59.960 more Republican attorneys general elected and working together to advance 0:10:00.040 --> 0:10:04.199 it's a conservative legal agenda. The Texas Attorney General at 0:10:04.240 --> 0:10:08.800 that time was now Senator John Cornyn. His second in 0:10:08.840 --> 0:10:12.800 command was Ted Cruz, two guys who come up over 0:10:12.920 --> 0:10:15.800 and over again in the context of these big Supreme 0:10:15.880 --> 0:10:19.440 Court cases. At any rate, in its first decade, RAGA 0:10:19.600 --> 0:10:23.960 was just focused on winning elections. Then in twenty. 0:10:23.679 --> 0:10:28.200 Ten, mister Olson, are you taking the position that there 0:10:28.280 --> 0:10:33.040 is no difference in the First Amendment rights of an individual? 0:10:34.120 --> 0:10:39.199 A corporation, after all, is not endowed by its creator 0:10:39.400 --> 0:10:46.840 with inalienable rights. So is there any distinction that Congress 0:10:46.880 --> 0:10:54.239 could draw between corporations and natural human beings for purposes 0:10:54.280 --> 0:10:55.520 of campaign finance. 0:10:55.720 --> 0:10:58.480 What the Court has said in the First Amendment context 0:10:59.080 --> 0:11:03.280 New York Times US is Sullivan, Gross Chain versus Associated Press, 0:11:03.679 --> 0:11:07.479 and over and over again as a corporations are persons 0:11:08.000 --> 0:11:10.120 entitled to protection under the First Amendment. 0:11:10.640 --> 0:11:15.199 That was the late Justice Ruth Bader Ginsberg questioning Attorney 0:11:15.200 --> 0:11:19.920 Ted Olsen during the landmark Citizens United case in which 0:11:19.960 --> 0:11:23.120 the Court ultimately ruled that corporations have the same free 0:11:23.120 --> 0:11:27.440 speech protections as individuals and that money, in this case, 0:11:27.559 --> 0:11:32.840 money spent on a movie length political attack ad is speech. 0:11:33.840 --> 0:11:37.480 That ruling opened up a flood of dark money into politics, 0:11:38.000 --> 0:11:41.439 billions of dollars coming from who knows where, to further 0:11:41.720 --> 0:11:46.120 who knows what agenda, and suddenly RAGA became a key 0:11:46.240 --> 0:11:49.000 political tool. Here's Graves again. 0:11:49.720 --> 0:11:52.640 Something has happened over the last twenty years. And I 0:11:52.720 --> 0:11:54.360 had looked at this back when I was working on 0:11:54.400 --> 0:11:57.720 the Senate Judiciary Committee. In terms of this, the rise 0:11:57.760 --> 0:12:01.199 of RAGA, the Republican Attorney's General Association in where we 0:12:01.320 --> 0:12:03.520 know that it's a pay to play operation, we know 0:12:03.679 --> 0:12:08.240 that it has had enormously distorting effect on US law. 0:12:09.240 --> 0:12:13.040 It provides a mechanism for corporations to pass money through 0:12:13.400 --> 0:12:17.560 to help attorneys general in ways that they would not 0:12:18.120 --> 0:12:21.880 be able to individually solicit for their own campaigns given 0:12:21.920 --> 0:12:26.200 their role, their regulatory role over those very industries. And 0:12:26.240 --> 0:12:30.240 that's been going on since RAGA was created, back more 0:12:30.280 --> 0:12:33.560 than twenty years ago now, and it has accelerated under 0:12:33.600 --> 0:12:36.520 some of the attorneys general who have led it, like 0:12:36.559 --> 0:12:39.439 Scott Crewe was who was, you know, in my view, 0:12:39.840 --> 0:12:46.040 another corrupt individual, someone who was lacks on ethical rules 0:12:46.080 --> 0:12:48.600 to say the least, and who was willing to do 0:12:48.679 --> 0:12:52.920 the bidding of the oil industry in attacking climate legislation 0:12:53.240 --> 0:12:57.120 and climate rules, even the very modest CPP the Clean 0:12:57.160 --> 0:13:02.240 Power Plan rules, to advance the interests of the funders 0:13:02.760 --> 0:13:03.400 of RAGA. 0:13:07.200 --> 0:13:10.200 Here's where we come back to West Virginia versus e PA. 0:13:10.640 --> 0:13:15.600 It's a RAGA case, so might even say the RAGA case. 0:13:15.920 --> 0:13:18.800 It was the jewel of Scott Prewitt's reign as the 0:13:18.840 --> 0:13:21.800 head of RAGA. You might remember that Prewitt went on 0:13:22.040 --> 0:13:26.120 from there to run the EPA, an agency he very 0:13:26.200 --> 0:13:27.600 much wanted to get rid. 0:13:27.440 --> 0:13:33.640 Of these Republican attorneys general behave in general, they are 0:13:33.880 --> 0:13:37.160 operating most often we've seen at the behest of the 0:13:37.160 --> 0:13:42.000 industries that they're soliciting funds for to fund RAGA. That's 0:13:42.080 --> 0:13:45.679 interesting beyond RAGA is funding the corporate funders of RAGA, 0:13:46.440 --> 0:13:49.679 we know that it now is receiving a substantial amount 0:13:49.720 --> 0:13:55.439 of money from one of the emerging big dark money operations, 0:13:55.480 --> 0:13:59.959 which is Leonard Leo's operation, which was funded, you know, 0:14:00.720 --> 0:14:07.000 funded through a group that's now defunct that has subsequently 0:14:07.160 --> 0:14:09.640 you know, basically been rebranded or renamed as Leo has 0:14:09.880 --> 0:14:13.880 has re uh launched his his operations after it was 0:14:13.920 --> 0:14:19.280 exposed by The Washington Post last year. So RAGA now 0:14:19.760 --> 0:14:24.200 is not just a recipient of of donations from big 0:14:24.320 --> 0:14:29.680 oil and big huge corporations, but it's also a major 0:14:29.720 --> 0:14:34.120 recipient of funds in which the source is completely unknown, 0:14:34.400 --> 0:14:38.600 and they've particularly targeted states in state AG's offices to 0:14:38.680 --> 0:14:44.240 advance Leonard's longer term agenda, which he described to the 0:14:44.240 --> 0:14:47.680 Council of National Policy, and this was documented in that 0:14:47.800 --> 0:14:50.680 Washington Post story, but he described in that in a 0:14:50.720 --> 0:14:53.920 speech to c n P last year that his that 0:14:54.080 --> 0:14:56.880 America stands at the precipice of what he called the 0:14:56.960 --> 0:15:00.640 revival of what he described as the quote structural constitution, 0:15:01.800 --> 0:15:06.600 and he told the CNP audience that no one alive 0:15:06.680 --> 0:15:09.040 in that room had seen the type of legal revolution 0:15:09.160 --> 0:15:11.400 that America was about to see based on the appointments 0:15:11.400 --> 0:15:15.480 to the Supreme Court and other courts to revive this 0:15:15.560 --> 0:15:18.800 so called structural constitution to the law as it existed 0:15:19.280 --> 0:15:25.680 pre New Deal. And you know, that affects a whole 0:15:26.040 --> 0:15:29.000 host of laws. It affects civil rights laws, that it 0:15:29.240 --> 0:15:33.440 will affect labor laws and labor rights, environmental regulation and more. 0:15:33.960 --> 0:15:38.400 And it's an attempt, in my view, to really limit 0:15:38.440 --> 0:15:41.760 the ability of Congress to pass laws, to limit the 0:15:41.760 --> 0:15:47.160 ability of agencies to regulate corporations, and to you know, 0:15:47.200 --> 0:15:53.760 sort of change the whole modern structure of government basically 0:15:53.840 --> 0:15:56.640 in terms of the administrative agencies, but also the rights 0:15:56.640 --> 0:16:00.720 of citizens and the relationships between the United States as 0:16:00.800 --> 0:16:03.120 a government and other governments. 0:16:03.760 --> 0:16:07.280 That is the master plan that West Virginia versus EPA 0:16:07.560 --> 0:16:08.880 is just one part of. 0:16:09.800 --> 0:16:09.840 It. 0:16:09.880 --> 0:16:15.160 Would be an extreme, radical, reactionary agenda to change our 0:16:15.320 --> 0:16:19.000 rights and limit our powers in our democracy through our 0:16:19.000 --> 0:16:23.600 representatives in ways that serve a very elite agenda, the 0:16:23.680 --> 0:16:26.880 agenda of the people who fund Leonard Leo and Leo's 0:16:26.880 --> 0:16:30.720 operations and fund the RAGA, the Republican Coturney General's Association, 0:16:31.400 --> 0:16:34.840 and have been really attempting to work a legal revolution 0:16:34.960 --> 0:16:37.920 through offices that we would otherwise consider to be independent. 0:16:38.440 --> 0:16:40.600 It would be nice to have Attorneys general of states 0:16:40.640 --> 0:16:45.720 who were not so captive to advancing the interests of 0:16:45.800 --> 0:16:50.120 Charles Koch, but unfortunately we are in an era in 0:16:50.120 --> 0:16:53.120 which those interests have been dominating. 0:16:53.520 --> 0:16:57.720 The EPA is, of course not the only regulatory agency 0:16:57.800 --> 0:17:01.120 that these interests would like to see peer, but we 0:17:01.160 --> 0:17:04.240 don't have to just stand by and watch it happen. 0:17:04.680 --> 0:17:07.240 I'm going to spend the second half of this episode 0:17:07.280 --> 0:17:10.399 talking about what might be up ahead and some of 0:17:10.440 --> 0:17:13.479 the tools still available to us even if all of 0:17:13.520 --> 0:17:17.359 the worst case scenario predictions about West Virginia versus EPA 0:17:17.840 --> 0:17:27.639 come true this week. It's coming up after this quick break. Okay, 0:17:27.760 --> 0:17:30.880 So when it comes to West Virginia versus EPA, first, 0:17:31.119 --> 0:17:33.479 I think it's important to be clear about what is 0:17:33.560 --> 0:17:38.080 and isn't actually being argued here, because even with this 0:17:38.160 --> 0:17:41.080 Supreme Court, they can't just rule on stuff that's not 0:17:41.160 --> 0:17:45.080 even vaguely mentioned in the case. I've been seeing a 0:17:45.080 --> 0:17:48.600 lot of overstatements about what's at stake here, everything from 0:17:48.680 --> 0:17:52.080 the Court making it illegal to regulate CO two to 0:17:52.119 --> 0:17:55.719 it shutting the EPA down altogether. And look, I'm not 0:17:55.800 --> 0:17:58.720 saying that either or both of those is out of 0:17:58.760 --> 0:18:01.840 the realm of possibility. At some point. There're certainly targets. 0:18:01.920 --> 0:18:04.000 They just wouldn't happen as a result of this case. 0:18:04.480 --> 0:18:07.280 What the justices can do in this particular case is 0:18:07.320 --> 0:18:10.480 say that under the Clean Air Act, the EPA does 0:18:10.520 --> 0:18:14.880 not have the authority to create an emissions reduction system 0:18:15.200 --> 0:18:20.000 or plan or policies that would in effect overturn the 0:18:20.000 --> 0:18:24.320 precedent set by Massachusetts versus EPA. That was the case 0:18:24.359 --> 0:18:26.280 a few years ago when the Court said the EPA 0:18:26.440 --> 0:18:30.919 did have the authority to regulate greenhouse gases. Here's Jason 0:18:31.040 --> 0:18:33.080 Rylander again to explain. 0:18:33.280 --> 0:18:35.520 I think the worst case scenario here is that they 0:18:35.600 --> 0:18:37.920 have an EPA's authority in a way that is going 0:18:37.920 --> 0:18:39.879 to make it more difficult for the Biden administration and 0:18:39.920 --> 0:18:45.680 future administrations to regulate effectively under Section one eleven of 0:18:45.720 --> 0:18:48.560 the Clean Air Act. The good news is Clean Air 0:18:48.560 --> 0:18:50.280 Act is broader than that, and there are a lot 0:18:50.359 --> 0:18:53.240 of other ways that we can get at greenhouse gas pollutions. 0:18:53.560 --> 0:18:56.840 And we also know that greenhouse gas pollutions emerge from 0:18:56.880 --> 0:18:59.040 things other than stationary coal and. 0:19:01.040 --> 0:19:01.719 Power plants. 0:19:02.359 --> 0:19:08.280 In fact, the market alone has already produced greater emissions 0:19:08.359 --> 0:19:12.200 reductions than had been predicted if the clean power plant 0:19:12.200 --> 0:19:13.760 had gone into effect. 0:19:14.119 --> 0:19:17.600 One way to get at greenhouse gases, especially if your 0:19:17.640 --> 0:19:21.600 top concern is CO two, is through an authority. The 0:19:21.640 --> 0:19:26.240 EPA already very much has, which is regulating air pollution 0:19:26.480 --> 0:19:31.800 under the Clean Air Act more broadly, specifically particulate matter. 0:19:32.240 --> 0:19:37.560 So this is the stuff that comes from combusting fossil fuels, 0:19:37.920 --> 0:19:40.679 it's what comes out of exhaust pipes, it's what is 0:19:40.800 --> 0:19:43.959 released at factories, power plants, all of that stuff, and 0:19:44.080 --> 0:19:47.600 the EPA already regulates that and has already moved to 0:19:47.680 --> 0:19:51.760 tighten those regulations. Another way to get at greenhouse gases 0:19:51.960 --> 0:19:54.600 is an approach we talked about in a recent episode 0:19:55.080 --> 0:19:58.919 invoking the Toxic Substances Control Act or TOSCA. 0:19:59.280 --> 0:20:01.760 EPA aware of all of these things, and they're worried 0:20:01.800 --> 0:20:05.280 about it, and all the staff is running around wishing 0:20:05.320 --> 0:20:07.720 that they could do something. The problem is they felt 0:20:07.720 --> 0:20:10.840 that they didn't have the authority and that none of 0:20:10.840 --> 0:20:13.639 the laws gave the authority. In fact, the authority has 0:20:13.640 --> 0:20:16.800 been hiding in plain sight the entire time under the 0:20:16.800 --> 0:20:19.480 Toxic Substances Act. But there was sort of a perceived 0:20:19.520 --> 0:20:24.399 wisdom that the Toxic Substances Control Act didn't work based 0:20:24.440 --> 0:20:27.639 on how the Agency got hammered over asbestos. And it 0:20:27.680 --> 0:20:29.760 was actually the agency's full because they didn't do their 0:20:29.800 --> 0:20:32.119 due diligence, but they thought they had a slam dunk there. 0:20:32.480 --> 0:20:34.640 It didn't work. They kind of threw up their hands 0:20:34.680 --> 0:20:36.760 and say, we have to work under the Clean Air Act, 0:20:36.760 --> 0:20:38.120 which is an abysmal law. 0:20:39.440 --> 0:20:43.679 That is former EPA scientist Don Viviani, speaking at a 0:20:43.720 --> 0:20:48.320 press conference earlier this month, he says climate advocates have 0:20:48.440 --> 0:20:52.280 been sleeping on TOSCA, which provides a much stronger basis 0:20:52.359 --> 0:20:55.520 for the EPA's authority to regulate greenhouse gases. 0:20:55.960 --> 0:20:58.160 This sort of problem is exactly the thing the TUSK 0:20:58.359 --> 0:21:02.080 was designed for. Congress knew that there were problems out 0:21:02.119 --> 0:21:07.360 there that were multimedia multiprogram that a single media Act 0:21:07.560 --> 0:21:12.399 couldn't handle, and that we needed something more expansive. It 0:21:12.520 --> 0:21:14.600 was designed to take care of things that the other 0:21:14.680 --> 0:21:18.080 laws weren't properly taken care of, and if you look 0:21:18.119 --> 0:21:20.600 back at the history of climate it's quite clear that 0:21:20.760 --> 0:21:22.679 none of the other laws are taking care of this. 0:21:23.160 --> 0:21:25.800 So this is exactly what TOSCO was designed to do. 0:21:26.200 --> 0:21:28.679 Viviani has signed on to a petition filed with the 0:21:28.720 --> 0:21:32.720 EPA requesting that the agency made a determination under TOSCA 0:21:32.720 --> 0:21:36.080 that greenhouse gas emissions pose a risk to human health 0:21:36.119 --> 0:21:40.560 and the environment, and then regulated as such. Other petitioners 0:21:40.600 --> 0:21:45.440 include climate scientists doctor James Hanson and climate accountability expert 0:21:45.520 --> 0:21:49.600 Richard Heaty, who authored the themed Carbon Major's Report which 0:21:49.640 --> 0:21:53.800 pinpointed the seventy companies most responsible for climate change. 0:21:54.400 --> 0:21:57.159 OSCAR actually was used in nineteen seventy eight for just 0:21:57.240 --> 0:22:03.040 this purpose with respect to CFCs on the ground in 0:22:03.160 --> 0:22:11.320 the rule that CFCs were endangering the ozone layer and 0:22:12.119 --> 0:22:17.640 presented a serious risk with respect to global warming. CFC's 0:22:17.840 --> 0:22:22.320 are also a gas and therefore you know there actually 0:22:22.400 --> 0:22:28.879 is strong precedent in EPA's own actions and utilizing this 0:22:29.000 --> 0:22:32.919 statute to kickstart in the effort to get rid of 0:22:32.960 --> 0:22:38.480 that potent pollutant that has very strong greenhouse gats forcing 0:22:38.760 --> 0:22:39.480 effect as. 0:22:39.320 --> 0:22:43.080 Well, it also has deep benefit of clear language around 0:22:43.119 --> 0:22:48.160 the EPA's authority, language that was strengthened with bipartisan support 0:22:48.320 --> 0:22:49.520 in twenty sixteen. 0:22:50.000 --> 0:22:54.359 They just reauthorized the Act in twenty sixteen was a 0:22:54.400 --> 0:23:00.760 bipartisan a reauthorization. So clearly this is the the language 0:23:01.080 --> 0:23:04.600 that the TOSK is supposed to deal with. Unreasonable risk 0:23:05.200 --> 0:23:08.560 is recent and it was a bipartisan It was a 0:23:08.600 --> 0:23:09.960 bipartisan passage. 0:23:10.280 --> 0:23:13.000 Doctor James Hansen says he hopes this effort will give 0:23:13.040 --> 0:23:16.320 the agency the authority to act before it's too late. 0:23:17.480 --> 0:23:23.520 We're so far off and that just hasn't hasn't sunk in. 0:23:23.840 --> 0:23:31.920 And you know, even though we have international organization, the 0:23:31.960 --> 0:23:36.280 Framework Convention on Climate Change and the conferences of the parties, 0:23:38.160 --> 0:23:41.200 some of the stuff that they're coming out with is 0:23:42.160 --> 0:23:50.800 pretty nonsensical. The last cop the head said, well, we've 0:23:50.880 --> 0:23:57.200 kept within the possibility to stay under one point five 0:23:57.280 --> 0:24:04.280 degrees warming. That's absolute bullshit. There's too much inertia in 0:24:04.320 --> 0:24:11.520 the energy system and in the warming that's in the pipeline. 0:24:12.480 --> 0:24:17.000 Just because the planet is now out of balance by 0:24:17.560 --> 0:24:23.040 an enormous amount doesn't sound like much a little more 0:24:23.080 --> 0:24:26.320 than a one walt per meter square, but that contains 0:24:26.400 --> 0:24:30.680 more than one degree celsius additional warming, and we're already 0:24:30.680 --> 0:24:38.200 at one point too. So yeah, we've passed the point 0:24:38.960 --> 0:24:43.080 of being dangerous. But we can still deal with the 0:24:43.200 --> 0:24:51.400 situation if we begin to make fossil fuels pay their 0:24:51.440 --> 0:24:52.600 cost to society. 0:24:53.840 --> 0:24:57.480 Multiple climate cases all over the world more than eighteen 0:24:57.600 --> 0:25:01.320 hundred and in fact A trying to do that as well, 0:25:01.440 --> 0:25:05.520 all of which will continue irrespective of the outcome of 0:25:05.600 --> 0:25:10.639 West Virginia versus EPA. Dan Gilburn, Executive Director and General 0:25:10.680 --> 0:25:14.480 Counsel for the Climate Protection and Restoration Initiative, is the 0:25:14.560 --> 0:25:18.960 lawyer spiritheading the TOSCA EPA petition, and he says the 0:25:19.000 --> 0:25:23.200 outcome of West Virginia Versus EPA shouldn't have any impact 0:25:23.359 --> 0:25:25.000 on that effort at all. 0:25:25.359 --> 0:25:27.560 One eleven D of the Clean Air Act has nothing 0:25:27.600 --> 0:25:32.680 to do with our petition. Under the Toxic Substances Control Act. 0:25:33.480 --> 0:25:38.040 One eleven D of the Clean Air Act confers authority 0:25:38.040 --> 0:25:46.280 on EPA to compel emissions controls from existing power plants, 0:25:47.280 --> 0:25:51.840 and there is a specific question as to whether the 0:25:51.920 --> 0:25:58.680 Obama EPA, in fashioning the now dormant Clean Power Plan 0:25:59.720 --> 0:26:04.919 over stepped its bounds and read into that provision of 0:26:05.000 --> 0:26:11.080 law authority to restrict emissions outside the fence line of 0:26:11.160 --> 0:26:14.560 power plants rather than just inside the fence line of 0:26:14.600 --> 0:26:21.240 power plants. So that's a specific, fairly narrow technical issue. 0:26:21.520 --> 0:26:25.320 Those including West Virginia and a number of other conservative 0:26:25.359 --> 0:26:29.480 states and a portion of the fossil fuel industry are 0:26:29.720 --> 0:26:35.040 urging the Supreme Court in that case to rule much 0:26:35.119 --> 0:26:42.400 more broadly, to say that without express language in this statute, 0:26:43.280 --> 0:26:51.359 no federal agency can really do much to restrict economic 0:26:51.440 --> 0:26:57.320 activity at the center of industrial policy, within a sector 0:26:57.400 --> 0:27:02.320 of the economy. And so to have a very broad 0:27:02.520 --> 0:27:06.760 prohibition against not only the EPA but other agencies attempts 0:27:06.800 --> 0:27:14.520 to restrict activity that even where it presents a significant 0:27:14.640 --> 0:27:18.960