The EPA's Ability to Fight Climate Change Hinges on the Supreme Court

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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, again, everyone. We're going to take a little break now from talking about the Supreme Court's ruling on carrying guns in public. In New York this morning, Emily Bazelon from Yale Law School and The New York Times Magazine and the Slate Political Gabfest, who watches the Supreme Court and has been good enough to be on standby for us the last few weeks as we wait for these major decisions to come down.

Emily is furiously reading the decision, and it's going to come on the show just in a little while a little later this hour, with a lot more detail than we've been able to bring you so far. Including perhaps an answer to the question that I raised with John Walsh before and that Michael just raised during the news is this now a moment when anybody with a license to own a gun legally in New York State, but just to keep it in your home or in your place of business, suddenly empowered to walk around with it on the streets of New York or anywhere else in the state?

We will try to get the answer to that and see what else is in the ruling, see what's in the dissent. See what avenues there might be legally to do what Governor Hochul apparently wants to do, which is craft a new law that makes it harder to carry guns publicly in New York but that somehow is in line with the Constitution as the Supreme Court 63 now perceives it. That's coming up.

We'll take a break for a minute as Emily is reading in, and now our climate story of the week. We'll use our climate story of the week this week to preview in a little more detail, one consequential ruling yet to be issued by the Supreme Court, it's over the EPA's authority on climate change, and this could come down any day. West Virginia versus Environmental Protection Agency is about whether the executive branch should have the authority to establish regulations for greenhouse gas emissions or whether that power should rest with Congress.

Climate-concerned citizens and experts in environmental law worry that ruling against the EPA could leave the agency significantly weaker with respect to climate. We'll get into the specifics of this case and talk about the possible ramifications of a sweeping ruling against the EPA now with Michael Gerrard, Professor of Law at the Columbia University Law School, and the founder and faculty director of the Sabin Center for Climate Change Law. Hi, Professor Gerrard. Welcome back to WNYC.

Michael Gerrard: Good morning, Brian.

Brian Lehrer: Even though you're an environmental law professor, you do teach at the Columbia University Law School. I'm sure you and your colleagues have been talking about this gun case in addition to everything else that's going on. Is there any quick reaction, any thought? I don't want to dwell on it because they do want to do our climate story of the week with you, but is there anything that you might have to add that we might not have thought of yet in the very first cursory reading of this decision?

Michael Gerrard: Well, just that it's more confirmation of the hard right turn that the current Supreme Court has taken. Even though the dissent written by Justice Breyer talked at length about Uvalde and Buffalo and all the other terrible things that have been happening, the majority didn't care, they were impervious to that. They had their view about the absolutism of the Second Amendment, and so be it.

Brian Lehrer: West Virginia versus Environmental Protection Agency, what's the background on this case? Who sued who for what?

Michael Gerrard: In 2015, the Obama administration issued a regulation called a Clean Power Plan that was designed to reduce the use of coal to generate electricity. In 2016, the Supreme Court stayed that rule using a shadow docket, they didn't take any argument. They didn't issue any explanation, but they said the rule is on hold until the appellate process is finished. The Trump administration repealed the Clean Power Plan and replaced it with a much weaker rule called the Affordable Clean Energy Rule. In January 2021, the day before the Trump left office, the DC Circuit said the Trump administration was wrong, that new rule was no good, and the Clean Power Plan was probably okay.

EPA then under Biden said they were going to issue a new rule they weren't going to bring back the old Clean Power Plan, they were going to issue new rules, everybody's waiting for that. Meanwhile, the Supreme Court surprised everybody and said they were going to take the case because West Virginia and some other states had sued saying EPA didn't have the power to do any of this. We don't have a rule on the table, but it looks like the Supreme Court may be ruling on just how far EPA can go in regulating greenhouse gases.

Brian Lehrer: Now, even though this is a case bearing West Virginia's name, the side challenging the EPA actually includes 27 Republican attorneys general from 27 different states. How much was that side actively aided by the fossil fuel industry?

Michael Gerrard: Sure, the Republican states sued a bunch of coal companies, and other fossil fuel companies sued. On the other side were most of the blue states and a lot of clean energy companies and environmental groups. We're seeing this over and over again with environmental litigation with the two sides taking a very different positions.

Brian Lehrer: I read that the Power Plant Industry, and its mostly power plants, if I'm understanding this correctly, that would be affected by these government rules, that the power plant industry was supportive of the Biden administration in this case, even though the coal industry was opposed. Is that accurate?

Michael Gerrard: Yes. We heard an argument at the Supreme Court by a lawyer for one of the power companies. In general, most of the power companies are moving away from coal, but not as quickly as possible, and they should do it faster. We still have the coal companies that want to stick around as long as possible, and in general, the anti-regulatory fervor of many of the Republican states is weighing in here.

Brian Lehrer: An article in Politico, back in February, when the case was argued, said the court's conservative majority spent much of the arguments probing the extent of EPA's authority with Justice Samuel Alito, at one point, arguing that EPA essentially sought unfettered power over major parts of the economy. There's a principle here, right? There's something larger at stake that could apply to many different regulatory agencies in the executive branch, and we'll talk about that. Specifically, with respect to the EPA, there's a philosophical and separation-of-powers question over how much it has the power to regulate the economy in the name of climate without Congress.

Michael Gerrard: Yes, we don't know how far the Supreme Court is going to go. Most people think that EPA will lose the case, but the question is, how badly will they lose? The court could rule very narrowly and just say that this one particular section of the Clean Air Act, Section 111(d) doesn't work on various technical grounds. That's a reasonable best-case scenario for the environmental side. The court could also go further and use its relatively newly developed doctrine called the major questions doctrine that says that agencies can't regulate big parts of the economy without explicit Congressional authorization.

Now, Congress has not passed a major new environmental law since 1990. We've gone 32 years without Congress acting because the partisan divide has immobilized any action. If that doctrine applies here, it would have really broad implications of disabling EPA from doing much on climate change and could really hurt a lot of other agencies and what they're trying to do.

Brian Lehrer: For people who might be a little confused, we talked at the beginning about how this is an Obama regulation, and then a new version of it from President Biden, but now we're talking about what the EPA can do. Are they one in the same talking about the power of these presidents and talking about the power of the EPA?

Michael Gerrard: Yes, there's pretty much the same, and the EPA under President Biden has not yet issued a new rule. The fact that the Supreme Court took this case so early is a sign that maybe they want to rule more broadly than just on this technical issue under the Clean Air Act.

Brian Lehrer: Well, where in the Clean Air Act did the Biden administration believe that it found the authorization the Clean Air Act from many decades ago as you indicate when climate wasn't even really in the main the discussion about clean air, it was more ground-level pollutants, that sort of thing? Where in the Clean Air Act did the Obama administration or the Biden administration find authorization to restrict greenhouse gas emissions?

Michael Gerrard: The Clean Air Act going back to 1970 authorizes EPA to regulate air pollutants that it finds endanger public health. In 2007 in a landmark case called Massachusetts v. EPA, the Supreme Court said that definition of air pollution is broad enough that it covers greenhouse gases if EPA makes this endangerment finding, which EPA did, and that was then upheld. We've known since 2007 that greenhouse gases could be regulated by the Clean Air Act. We're very much hoping that the Supreme Court doesn't go so far as to say they were wrong back in 2007, although Roberts and Alito and Thomas, still on the court, had all dissented from Massachusetts. That's one possible outcome which would be really serious.

Brian Lehrer: The implications beyond climate. When we think about the Trump administration, for people following it at the level of policy, his campaign manager at one point and core advisor early in his term, Steve Bannon, used to say one of the main things that they were about was cutting the regulatory state, dismantling the regulatory state. Environmental regulations, in general, had been very much in the sights of those conservatives who want to dismantle the regulatory state, but the regulatory state is a lot more than the EPA. Can you put this question that the Supreme Court is deciding on in the context of how much more broadly it might apply if they decide that the EPA is overstepping its regulatory power balance?

Michael Gerrard: Just a couple of months ago, the Supreme Court used this major questions doctrine to say that OSHA couldn't issue the regulation on vaccines and masks.

Brian Lehrer: OSHA is the Occupational Safety and Health Administration, so that's the part of the federal government that basically protects workers in their workplaces, right?

Michael Gerrard: Exactly. One would think that, although a lot of workers were dying as a result of COVID, OSHA should be able to regulate that. The Supreme Court said no. That was using the major questions doctrine. There's an even more dangerous doctrine that might be used. It's called the non-delegation doctrine that said that Congress, even if it wants to, can't delegate to agencies the authority to make important policy decisions. It has to be really, really specific.

The court has only used that doctrine twice. That was in 1935 during the New Deal to throw out laws, but several of the members of the current court seem sympathetic to that argument. If that were to go through, it would be even worse than the use of the non-delegation doctrine and would wipe out a lot of the authority of federal agencies to do what they've been doing for generations.

Brian Lehrer: Like with the EPA, OSHA is primarily concerned with health and safety of the population. Are those the primary areas in which sweeping version of a ruling by the Supreme Court would affect or are there others too?

Michael Gerrard: You could imagine it affecting banking regulation, securities regulation, food and drug, education policy. There's a whole range. Look at the list of cabinet agencies and most of them are involved in something that involves regulation of the economy and where Congress has given the agency's broad authority to act, but hasn't been real specific, because how can they possibly be real specific looking decades in advance and new problems that could arise?

Brian Lehrer: With respect to climate per se, because we're talking about all this law, all these ways to interpret the constitution and the abstract a little bit what the executive branch has the power to do compared to the congressional branch, the legislative branch of government and the separation of powers, but what about on climate itself? How much of an impact would it have on the government's efforts to limit climate change if the Supreme Court sides with the coal companies and the Republican attorneys general?

Michael Gerrard: That depends on how narrow or broad the ruling is. If the court rules just on this one section of the Clean Air Act, it's just basically restricting EPA's authority to deal with power plants and their greenhouse gas emissions. There are other ways that EPA can regulate other air pollutants that come out of power plants. The biggest source of greenhouse gas pollution in the country right now is motor vehicles. That's a whole different section of the Clean Air Act. If the court rules narrowly, then that won't affect the regulation of motor vehicles. If it rules much more broadly, then it could.

This does not reduce the power of the states. The states still have a lot of power to regulate greenhouse gas emissions. It doesn't inhibit the ability of the federal government and the states to support the growth of renewable energy like wind and solar, which are the most important elements of fighting climate change. There's still tools in the toolbox, but some of them will have been taken away if the Supreme Court rules for the coal companies.

Brian Lehrer: Interesting. As we shift back now in a couple of minutes to covering this gun rights ruling from the Supreme Court today, which has the right to bear arms doesn't only pertain to in your home or in your place of business, but also in public, striking down New York's law that pretty much limits who with a license can carry guns publicly. We're going to go back to our coverage on that in just a few minutes.

Professor Gerrard, with respect to environmental law-- well, what we're hearing from Governor Hochul in New York, since this is a New York law that the Supreme Court struck down today, is that they're preparing legislation already that would go at it another way, that would try to accomplish the same goals, that is making it relatively hard to carry guns in public in New York, but that somehow passes muster with the Supreme Court six to three majority in the Second Amendment case. Is there anything like that, that people you know, as an environmental law professor, are working on if the Supreme Court strikes down the authority to impose these power plant rules? Is there some other way around it, some other way at the same goal while Congress remains gridlocked?

Michael Gerrard: Yes. For example, the Clean Air Act also regulates mercury, which is a major pollutant from coal plants. EPA could do more to regulate mercury. It could do more to regulate coal ash. It could do more to regulate hot water discharges that come from the cooling systems at power plants. There are lots of other ways that EPA can regulate the sources of greenhouse gases even if they lose this authority.

Brian Lehrer: What else before you go do you consider at the vanguard of environmental law right now?

Michael Gerrard: Well, this case is about the Clean Air Act, but the Supreme Court has also taken a case that is aimed at the Clean Water Act. In October, they're going to hear argument in a case called Sackett, which concerns the scope of the Clean Water Act's authority over water. There's no question that the EPA and the Corps of Engineers can regulate rivers and lakes and oceans, but isolated waters, wetlands, things that are not flowing toward a major river, it's been a big dispute for years about the extent of possible government authority over that.

There's a real risk that EPA will lose a lot of that authority in this case that the Supreme Court called the Sackett case we'll be hearing in October. That could allow people to fill in or dump pollution in isolated waters and wetlands and other areas that have a lot of ecological significance, but that aren't connected with the oceans.

Brian Lehrer: By the way, has this case while we wait for the Supreme Court to rule on it pertaining to power plants and greenhouse gas emissions, has it had implications already? Has the EPA been more cautious about emission standards while this case is pending?

Michael Gerrard: Yes, EPA was getting ready to issue a new set of regulations dealing with the power plants to come after the Clean Power Plan, but they've been holding off until they hear from the Supreme Court about just how much power they do or don't have. It's put everything on hold.

Brian Lehrer: Michael Gerrard, professor of law at the Colombia University Law School and founder and faculty director of the Sabin Center for Climate Change Law. Thank you for giving our listeners more background on this Supreme Court decision yet to come and thank you for being our guest on our climate story of the week.

Michael Gerrard: Thank you.

 

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