The United States Supreme Court heard arguments on Monday in a challenge by coal-producing states that could deal a setback to the Biden administration’s plans to combat climate change.
The case involves claims by 19 mostly Republican-led states and coal companies that the US Environmental Protection Agency (EPA) does not have the legal power to issue sweeping new policies governing power plants.
At issue is whether Congress must give the EPA specific authority to make new rules limiting carbon emissions nationwide.
West Virginia Attorney General Patrick Morrisey, speaking at a recent event in Washington, DC, cast the case as about who should make the rules. “Should it be unelected bureaucrats, or should it be the people’s representatives in Congress?” he asked.
Supreme Court arguments on Monday were held just hours after the publication of a 3,675-page United Nations report urging no delay in global action to combat climate change. The US is second behind only China in greenhouse gas emissions. Outside the court, a small group of demonstrators carried signs reading “Protect the Clean Air Act”.
The case arises at a time when the new 6-3 conservative majority on the high court has questioned what justices see as the unchecked power of federal agencies.
Justice Samuel Alito, a conservative, suggested any broad assertion of authority sought by the EPA would constitute a “major question” that under court precedent requires Congress to have expressly authorised it.
Alito told Solicitor General Elizabeth Prelogar, a lawyer for the administration of US President Joe Biden, that the EPA is seeking not just to regulate individual power plants but instead wants to “set energy policy” for the whole country.
Prelogar said the Supreme Court’s consideration of the issue was premature because the EPA would unveil a proposed new regulation by the end of the year – likely after the court’s ruling in June.
The legal battle over the EPA’s authority began with a Clean Power Plan proposed in 2014 under former President Barack Obama that would have required states to reduce power-plant emissions by shifting away from coal-fired plants.
The Obama plan never took effect. Acting in a lawsuit filed by West Virginia and others, the Supreme Court blocked it in 2016 by a 5-4 vote, with conservatives in the majority.
After President Donald Trump took office, the EPA repealed the Obama-era plan. The agency argued that its authority to reduce carbon emissions was limited and offered a new plan that sharply reduced the federal government’s role.
New York and 21 other, mainly Democratic states, along with the District of Columbia and some of the nation’s largest cities, sued over the Trump plan. A federal appeals court ruled against both the repeal and the new plan, leaving it to the Biden administration to come up with a new plan.
David Doniger, a climate change expert with the Natural Resources Defense Council, said opponents of the EPA regulations were advancing “horror stories about extreme regulations the EPA may issue in the future”.
“The EPA is writing a new rule on a clean slate,” he said.
The Supreme Court has shown antagonism towards broad agency actions, most recently on January 13 by blocking Biden’s COVID-19 vaccine-or-test mandate for large employers.
A conservative ruling on EPA rules could weaken not only the Biden administration’s effort to cut carbon emissions, but other regulatory efforts, including consumer protections, workplace safety and public health.
Ironically, much of the emissions reductions sought in the Obama plan by 2030 already have been achieved through the market-driven closure of hundreds of coal plants.
Some of the nation’s largest electric utilities, serving 40 million people, along with prominent businesses that include Apple, Amazon, Google, Microsoft and Tesla, are supporting the Biden administration’s intent to come up with a new regulatory proposal.