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Supreme Court Hears Effort To Cripple EPA On Climate Change

February 28, 2022
WASHINGTON, DC - APRIL 23: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Th... WASHINGTON, DC - APRIL 23: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Photo by Erin Schaff-Pool/Getty Images) MORE LESS
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February 28, 2022

The Supreme Court is hearing arguments Monday morning in West Virginia v. EPA, where red states and coal companies are asking the Court to dramatically limit the agency’s ability to regulate greenhouse gas emissions.

Legal experts were stunned that the Court took up this case in the first place, since both agency rules in question, one from the Obama administration and its replacement from the Trump EPA, are no longer operational. The Biden administration asked the Court not to take up the case over the defunct rules, saying that it’s working on a replacement that will likely inspire more litigation then anyway.

The Court didn’t listen. That struck court watchers as ominous, perhaps signaling that the conservative justices are too eager to curtail the EPA’s power to wait.

Argument schedule:

  • Lindsay See, West Virginia solicitor general (20 minutes)
  • Jacob Roth, attorney for coal companies (15 minutes)
  • Elizabeth Prelogar, United States solicitor general (20 minutes)
  • Beth Brinkmann, attorney for power companies siding with EPA (15 minutes)

Listen in here:

Supreme Court website.

Handy definitions:

Major questions doctrine — holds that, in order for agencies to make rules that have significant economic and social effects, Congress must have been explicit in the legislation giving agencies their authority.

Nondelegation — the major questions doctrine’s more aggressive cousin. This doctrine (which has not been used to strike down a regulation since the New Deal) questions Congress’ ability to outsource its legislative abilities at all.

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The Supreme Court is hearing arguments Monday morning in West Virginia v. EPA, where red states and coal companies are asking the Court to dramatically limit the agency’s ability to regulate greenhouse gas emissions.

Legal experts were stunned that the Court took up this case in the first place, since both agency rules in question, one from the Obama administration and its replacement from the Trump EPA, are no longer operational. The Biden administration asked the Court not to take up the case over the defunct rules, saying that it’s working on a replacement that will likely inspire more litigation then anyway.

The Court didn’t listen. That struck court watchers as ominous, perhaps signaling that the conservative justices are too eager to curtail the EPA’s power to wait.

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Feb 28, 2022 12:21 p.m.

That’s A Wrap

See, representing West Virginia, did a quick rebuttal, and then the arguments wrapped. Check back soon for my take on the day’s very odd proceedings.

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Feb 28, 2022 11:57 a.m.

More Court Fun


“It’s not always the case that a lawyer responds to one of Justice Breyer’s hypotheticals with ‘that’s very helpful,'” Kagan joked, setting off a round of laughter.

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Feb 28, 2022 11:56 a.m.

Alito Presses That Major Questions Can Be Invoked When Agencies Not Using Full Power

In a prolonged back and forth, Alito pushed Brinkmann to say whether major questions can be invoked when an agency is only using a small percent of its full power.

Breyer jumped in with a colorful hypothetical on tobacco that got the court a-chuckling.

“I can never equal my colleague’s evocative hypotheticals,” Alito said. He then kept making the case that if you give an agency an inch, it’ll take a mile.

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Feb 28, 2022 11:49 a.m.

Power Plants Want Flexibility

Beth Brinkmann, arguing for the power plants, hammers repeatedly that if Congress wanted to stop power plants from doing trading across the grid, it would have been explicit. Power plants want flexibility to lower emissions across the grid rather than at each individual plant because it’s more cost effective — and that’s how they found themselves shoulder to shoulder with the EPA.

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Feb 28, 2022 11:27 a.m.

Alito Gives Voice To Red States’ EPA Fearmongering

“Is there any reason EPA couldn’t force a system for single family homes similar to what it is claiming it can do with existing power plants?” Alito asked.

This is something the red state/coal company coalition pushed in its filings — that EPA is coming for power plants now, but that your homes (and the costs of retrofitting, decreasing emissions, what have you) may be NEXT.

Prelogar responded that the EPA has never listed homes as a source of emissions to regulate because they’re so varied.

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Feb 28, 2022 11:24 a.m.

Alito On Climate Change

Justice Samuel Alito characterizes climate change as an issue “which some people believe is a matter of civilizational survival.” Some people!

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Feb 28, 2022 11:15 a.m.

Kavanaugh Revives Major Questions

Justice Brett Kavanaugh brought up that Congress knows how to do cap and trade — indicating that Congress is knowledgeable enough to do this kind of regulation itself.

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Feb 28, 2022 11:11 a.m.

Roberts Questions Why West Virginia Doesn’t Have A Case

“Just because there’s no regulation doesn’t mean they’re happy,” Chief Justice John Roberts said.

U.S. Solicitor General Elizabeth Prelogar countered that West Virginia is free to regulate in compliance with what the ACE rule would have governed. They do not, she added, have the right to claim injury under a more stringent federal regulation that does not currently exist.

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Feb 28, 2022 11:06 a.m.

Breyer Chuckles Over Not Having Read The DC Circuit’s Opinion Knocking Down ACE

…Seems like important prep, Justice!

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Feb 28, 2022 11:03 a.m.

Here’s Where We Are So Far

The Court is taking a five minute break before the government gets its chance to speak.

So far, the big questions hanging over this case — how in the world West Virginia has standing in a lawsuit against a nonexistent rule, and how arguing that plant-by-plant regulations would have smaller ramifications makes any sense — have taken most of the time. The liberal justices have been hammering those points.

The bigger issues of agency delegation have not come up much so far. But the conservative justices may unleash those questions now that we have the Biden administration’s solicitor general and aligned power plants speaking.

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Notable Replies

  1. I guess we know how Ginni will vote. I fear there’ll be at least four other votes for the hobbling of common sense.

  2. Just as yet another apocalyptic climate report is released. Science versus greed. Guess the winner.

  3. “Hears Effort” is misleading - the headline should be simplified to “Supreme Court to Cripple EPA”.

    Throw all of the hounds the abortion steak to distract them while the real work gets done.

  4. On the upside, it won’t matter once everything is irradiated.

  5. “Supreme Court Hears Effort To Cripple EPA On Climate Change”

    Well, this should be rich, right?

    Another opportunity for the right wing Injustices to cripple the federal government. Yippee! Yeah, let’s make protection of the environment a state responsibility only! Why, that liberal freedom-stealing EPA was founded by that notorious commie-rat Democrat, Richard Nixon.

    Oh, wait.

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