Amy Howe writes at scotusblog Justices agree to review EPA’s authority to regulate greenhouse gases. Excerpts in italics with my bolds.
Climate change regulation
The litigation over the EPA’s authority comes to the court in a quartet of environmental cases on appeal from the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit vacated both the Trump administration’s decision to repeal the 2015 Clean Power Plan, which established guidelines for states to limit carbon dioxide emissions from power plants, and the Affordable Clean Energy Rule that the Trump administration issued in its place.
Urging the justices to hear the case, one of the challengers, the North American Coal Corporation, acknowledged that the issue of climate change and how to address it has “enormous importance,” but the company stressed that “[t]hose debates will not be resolved anytime soon.” What the court should resolve, it continued, “as soon as possible is who has the authority to decide those issues on an industry-wide scale — Congress or the EPA.” Unless the justices weigh in, the company warned, “these crucial decisions will be made by unelected agency officials without statutory authority, as opposed to our elected legislators.”
The Biden administration told the justices that there was no need for them to step in now, because the Clean Power Plan “is no longer in effect and EPA does not intend to resurrect it.” Instead, the government explained, it intends to issue a new rule that takes recent changes in the electricity sector into account. “Any further judicial clarification of the scope of EPA’s authority,” the government suggested, “would more appropriately occur” after the agency has actually issued the new rule.
After considering the cases at four consecutive conferences, the justices granted review and ordered the cases to be argued together. The justices’ decision in the case, which is expected by summer 2022, could have an impact well beyond environmental law because it could impose new limits on Congress’ ability to delegate authority to all regulatory agencies.
The lead case is West Virginia v. EPA. It is consolidated with North American Coal Corp. v. EPA, Westmoreland Mining Holdings v. EPA, and North Dakota v. EPA.
Background at previous post
My comment: I much appreciate Judge Walker’s reprise of the historical journey. After earning my degree in organic chemistry, I am still offended that a bunch of lawyers refer to CO2 as a “pollutant” as though it were an artificial chemical rather than the stuff of life. And it annoys me that the American Lung Association fronted this legal attack, as though CO2 was causing breathing problems in addition to a bit of warming during our present ice age. And that list of ailments solved by reducing CO2 emissions rivals any snake oil poster ever printed.
Observers noted that this ruling produces a kind of limbo: Obama’s Clean Power Plan is out of order, and now Trumps Affordable Clean Energy program is shot down. Likely Biden will try to return to CPP as though Trump never happened, but the same objections will still be raised. Clearly Judge Walker sees the issue headed for the Supreme Court as the stakes are too high for anyone else. After their lack of courage on the 2020 election scandal, who knows what the Supremes will do.
Footnote: See post The Poisonous Tree of Climate Change
The roots of this poisonous tree are found in citing the famous Massachusetts v. E.P.A. (2007) case decided by a 5-4 opinion of Supreme Court justices (consensus rate: 56%). But let’s see in what context lies that reference and whether it is a quotation from a source or an issue addressed by the court. The majority opinion was written by Justice Stevens, with dissenting opinions from Chief Justice Roberts and Justice Scalia. All these documents are available at sureme.justia.com Massachusetts v. EPA, 549 U.S. 497 (2007). The linked post summarized the twisted logic that was applied.