Confusion On Supreme Court’s Decision On EPA Regulation of Existing Power Plants Is Obscuring Important Issues

By now, everyone knows that the US Supreme Court issued a bad decision on EPA regulation of carbon dioxide emissions from existing power plants (coal and natural gas fired – read the opinion “West Virginia v. EPA“).

I will post a substantive assessment of that soon, but for now I just want to make a few broader points based on media reports and reactions from environmental groups.

Media and environmental groups are both exaggerating AND under-estimating the implications of the opinion. That distorts what’s going on because:

1. That obscures and let’s the Obama EPA off the hook for the flawed regulatory strategy in crafting the rule the Court stuck down. There were alternatives EPA didn’t choose – one of which was mentioned in the dissenting opinion by Justice Kagan. For our NJ friends, those strategic decisions were made by Obama EPA Administrator Lisa Jackson, and we criticized them at the time. (also see this post on the EPA NEW source CO2 emission rules, which discusses alternative regulatory strategies for the then neglected existing sources in the updates. The same timid strategy is reflected in EPA’s “Tailoring rule”.)

(and there’s a long NJ history on these rules, see:

• Whitman Set Back EPA Regulation of Greenhouse Gases By Over a Decade

2. It also lowers expectations for the upcoming Biden EPA regulations, thus allowing Biden to blame the Court in much the same way he blames Joe Manchin and the republicans for his failures.

3. In contrast, by focusing narrowly on the Court’s action to strike down the specific EPA regulation at issue, folks are missing the far larger and more significant new “major questions doctrine” the Court articulated – particularly in Gorsuch’s concurrence – which will undermine not only the EPA climate rules, but all EPA regulations as well as far more broadly all the regulations proposed by all federal agencies.

4. This decision was not unexpected and is the culmination of a 50 year long campaign of radical ideology and the result of a corporate strategy initiated in 1971 by the Powell Memo. It was locked in with the appointments of Justices Gorsuch and Kavanaugh, which we predicted and wrote about.

• Gorsuch is a fundamental threat to the “New Deal Administrative State”

• Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court

[Notes: Chief Justice Roberts – a former Federalist Society contributor and corporate lawyer  for the Chamber of Commerce, a major player in the Powell Memo strategy – wrote the majority opinion. It is not hard to see how radical ideas from the Cato Institute’s Amicus brief influenced his opinion and the concurrence by Justice Gorsuch.

For a discussion of the Powell Memo’s longtime corporate deregulatory strategy, read the absolutely superb Amicus brief filed by US Senators Whitehouse, Sanders, Blumenthal and Warren. Note that corporate NJ Senator Booker is not on that brief. Remember that the next time he spouts some green BS. Here’s a taste of the argument:

As the excesses of powerful industries were reined in, however, these same regulations fostered resentment among those seeking to operate without such restraint.

These cases are the direct product of that resentment…. The theories and arguments were incubated, grown, propagated, and distributed by a well-funded apparatus that has selfish and destructive goals. These industry interests hope to cripple the federal government’s ability to regulate them by fostering hostility toward what they pejoratively call the “administrative state.” Their efforts, carried out by their front groups, proliferate through the political process, through faux intellectual ideas and grassroots campaigns, strategic appointments and policy proposals in the executive branch, and massive campaign contributions to those running for Congress.]

5. We were vindicated (again!). While all the environmental groups were cheerleading the “transformative” nature and they all predicted huge emission reductions from the Obama EPA rule, we were one of the few (the only voice in NJ, as far as I know) who strongly criticized it (at the time it was proposed) as doing very little. Here’s Kagan’s dissent at page 23:

6. Although NJ DEP implements the federal Clean Air Act, the DEP’s proposed CO2 emission rule was based on NJ State law. But that does not mean that there will be no impact on the DEP proposal. The Court’s decision, indirectly, will have spillover effects and raises related legal issues for a NJ DEP proposed regulation of CO2 emissions (and some are embedded in DEP’s interpretation of the NJ State law standard of “advances in the art of pollution control” – or what’s commonly known as “State of the art” SOTA). I also have written about those legal vulnerabilities and specifically warned DEP Commissioner LaTourette and NJ policymakers. See:

• How The Global Warming Response Act Was Stripped

• Who Stripped DEP Permit Authority From The Global Warming Response Act And Why Did They Do It?

• Federal Courts’ Attacks On Biden and EPA Climate Regulations Have Huge Implications for NJ And Murphy DEP CO2 Emission Proposal

7. And while I’m on the topic of accountability, it wasn’t just coal states like West Virginia the sued to block the Obama Clean Power Plan – As I wrote, NJ Gov. Christie did as well:

NJ was one of those 28 states that challenged the Obama EPA rules – the Christie Administration joined coal states like West Virginia (read the brief).

Here’s a note I sent to out friends at Catskill Mountainkeeper in reply to their alert to members – I’ll expand upon the points in a future post (and give me a break: this isn’t a law review article, it’s Wolfenotes!):

Hi – just wanted to clarify and correct your statement I just received, which said:

“the Supreme Court ruled that the EPA was not authorized to regulate carbon emissions from existing power plants under the Clean Air Act”

That is NOT what the Court ruled.

The Court struck down the specific form of regulation that EPA adopted under the Obama Clean Power Plan.

By describing the decision this way, you not only get it technically wrong legally.

You also:

1) absolve the Obama EPA for a poor strategic legal choice in drafting the regulation struck down by the court (there were alternatives, including one mentioned in Kagan’s dissent), and

2) More importantly, you diminish expectations on the Biden administration’s EPA upcoming regulatory efforts. At worst, thus allowing Biden to use the Court as the bad guy the same way he uses Manchin and the Republicans. 

Please correct your inaccurate and poorly phrased alert to members.

Bill Wolfe