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Supreme Court considers EPA’s power to limit greenhouse gas emissions

Energy-producing states and coal companies are urging the court to rule that the EPA doesn’t have the authority to shift energy production away from coal-burning power plants.
Smokestacks at the Jeffrey Energy Center coal power plant
Emissions rise from the smokestacks at the Jeffrey Energy Center coal power plant near Emmett, Kan., on Sept. 18Charlie Riedel / AP Photo file

The Supreme Court on Monday struggled to consider how much power the Environmental Protection Agency can exercise to limit greenhouse gas emissions from existing power plants, one of the most important cases of a term already loaded with blockbuster issues.

After two hours of oral argument, it was not clear whether a coalition of red states and the coal industry would get the restriction on the EPA’s authority that they were hoping for.

At stake is the extent of the government’s authority over “the single largest industrial source of climate pollution in our country and one of the largest sources of carbon dioxide pollution in the world,” said Vickie Patton, general counsel of the Environmental Defense Fund.

Energy-producing states and coal companies, led by West Virginia, urged the court to rule that the EPA does not have broad authority to shift the nation’s energy production away from coal-burning power plants toward cleaner sources, including solar and wind power.

That kind of public policy can be set only by Congress, not a federal agency, said Lindsay See, West Virginia’s solicitor general. She told that court that the EPA seeks “the power to reshape the nation’s energy sector by choosing which sources should exist at all and setting standard to make that happen.”

Some of the court’s conservative appeared receptive to that argument. Justice Brett Kavanaugh said Congress explicitly allowed industrywide cap-and-trade agreements to reduce acid rain but did not do so for carbon dioxide pollution. “So the EPA tried to do it through an old and ill-fitting regulation,” he said.

West Virginia also urged the court to declare that what the EPA sought to do is a major question, beyond the agency’s delegated power, just as the court ruled earlier that the FDA could not regulate cigarettes and the Centers for Disease Control could not halt evictions because of Covid.

But at least one of the court’s conservatives was skeptical of that view. “Here we’re thinking about EPA regulating greenhouse gasses. There’s a match between the regulation and the agency’s wheelhouse,” said Justice Amy Coney Barrett.

The court’s more liberal members seemed to reject another contention from the challengers, who argued that the EPA sought to do something so sweeping that it required specific congressional authorization.

“This is not a kind of regulate-to-the-end-of-the-world kind of thing,” said Justice Elena Kagan. “It clearly says that there are other constraints that have to be considered to impose reasonable limits.”

The case came before the court in an unusual posture, because the states and coal companies were not challenging any specific rule now in effect. Instead, they were contesting a federal appeals court ruling that said the EPA could issue the kind of regulations the challengers oppose.

Elizabeth Prelogar, the Justice Department’s solicitor general, said the challengers had nothing concrete to contest. “They’re not harmed by the status quo," she said. "They seek to constrain the EPA’s authority in an upcoming rulemaking,” which she said the federal courts are not allowed to do.

The legal fight began seven years ago, when the EPA under the Obama administration issued a plan for reducing carbon dioxide pollution from power plants by allowing their operators to get credit for generating more power from lower-emitting sources, such as natural gas or solar or wind energy. The coalition of states and coal companies sued, saying the Clean Air Act gave the government authority only to restrict pollution from specific power plants, not to require power companies to shift to different methods of generation.

After the Supreme Court blocked the enforcement of that rule, the EPA abandoned it and instead, under the Trump administration, proposed standards that would regulate only emissions from power plants. The relaxed restriction on greenhouse gases was then challenged by a different lineup of states and a coalition of environmental groups.

The U.S. Court of Appeals for the District of Columbia Circuit, on Donald Trump’s final day in office, struck down his administration’s revised rule. As a result, no EPA restriction currently applies to carbon pollution from existing power plants. But the appeals court ruling left the door open for the Biden administration to resurrect the EPA’s earlier approach, involving a shift to cleaner sources.

That possibility is what the coal companies and red states were asking the Supreme Court to prevent. 

Jacob Roth, representing the North American Coal Corporation, told the court the that the EPA seeks the power “to effectively dictate not only the technical details of how a coal plant operates, but also the big picture policy of how the nation generates its electricity.”

But several large public utilities, including Pacific Gas & Electric Co. and Consolidated Edison, were on the Justice Department’s side.

The ability of the EPA to regulate in this area “is critical to the power companies,” said Beth Brinkmann, a lawyer representing the industry. “For years power companies have used emissions trading, generation shifting and other measures to reduce emissions while keeping the lights on at reasonable cost,” she said.

The case has also attracted interest from dozens of business and interest groups. Among companies siding with the Biden administration are Apple, Amazon, Google, Microsoft and Tesla. In a friend of the court brief, they said “both corporate and regulatory action are necessary to prevent the worst impacts of climate change.”

The court will decide the case by early July.