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Coal plants

Oral arguments for a U.S. Supreme Court case that could kill the Environmental Protection Agency's ability to regulate planet-heating emissions from power plants were held on February 28, 2022. (Photo: Shutterstock)

SCOTUS Hears 'Dangerous Attack' on EPA Power to Curb Climate Pollution

"It was grotesque to hear Big Coal's lawyers argue for tying EPA's hands," said one critic, "even as the world's scientists warn of a bigger, worsening swath of human suffering."

Jessica Corbett

As global scientists on Monday reiterated the necessity of bold climate action, lawyers for coal companies and Republican-led states tried to convince the U.S. Supreme Court to strip the Biden administration of its authority to regulate planet-heating pollution from power plants.

"The conservative supermajority of the Supreme Court is on the precipice of limiting EPA's ability to combat climate change and protect public health."

Legal experts say West Virginia v. Environmental Protection Agency (EPA) could be one of the most significant environmental cases in decades—or even in U.S. history. The highly anticipated oral arguments began Monday morning and lasted about two hours.

"The conservative supermajority of the Supreme Court is on the precipice of limiting EPA's ability to combat climate change and protect public health," warned Earthjustice's Sam Sankar. "It aims to use its made-up 'major questions' doctrine to advance a right-wing deregulatory agenda that will tie the hands of federal agencies as they try to fight pollution and protect our families from the climate crisis."

Jason Rylander, an attorney at the Center for Biological Diversity's Climate Law Institute, said that "it was grotesque to hear Big Coal's lawyers argue for tying EPA's hands on cutting climate-heating pollution, even as the world's scientists warn of a bigger, worsening swath of human suffering."

The center, an environmental respondent in the case, recently outlined moves President Joe Biden could make if he declared a climate emergency.

Rylander emphasized that "no matter how the Supreme Court rules in this case, President Biden still has broad authority under an array of existing laws to reduce greenhouse gas pollution, restrict development of fossil fuels and accelerate a just, clean-energy transition. We're out of time and the president must act boldly now."

Though Biden has vowed to halve the nation's emissions, relative to 2005, by the end of this decade, the U.S. House-approved package meant to deliver on some of his climate pledges has stalled in the evenly split Senate, and Democrats could lose control of one or both congressional chambers in this year's midterm elections. Given the limited chances of the legislation making it through Congress, meeting his promises may require bolder executive action.

"The court proceedings showed clearly that those opposing climate regulation are wrong at every step of the analysis," said Rylander. "If the far-right majority on the Supreme Court were to nonetheless block the EPA from addressing deadly greenhouse gas pollution, then Biden must lead the way on court reform to halt this power grab."

Biden announced last week that Judge Ketanji Brown Jackson is his pick to replace retiring Justice Stephen Breyer. While welcoming her historic nomination, some climate advocates also continued to call for expanding the court, given its right-wing supermajority.

Citing West Virginia v. EPA, Sunrise Movement executive director Varshini Prakash said Friday that "we are also sobered by the reality that even if Judge Brown Jackson is approved, her appointment won't change the fact that the Clean Air Act could be gutted."

Previewing the case last week, The Washington Post highlighted some rulings from the current justices, reporting that "in separate decisions stopping the Biden administration's plans for a vaccine-or-testing mandate for large employers and extending a nationwide eviction moratorium during the pandemic, the court's conservatives said federal agencies have exceeded the authority granted to them by Congress."

Reporting on the arguments Monday, CNN pointed out that while the high court's three liberal members—Breyer along with Justices Elena Kagan and Sonia Sotomayor—predictably "appeared skeptical of petitioners' arguments," some questions from the six conservatives also "cast doubt that they would necessarily agree with the petitioners."

"Justice Neil Gorsuch asked few questions during the hearing, but noted that the EPA's case was a 'strong argument' that the states are not harmed given there's no rule in place," according to CNN.

The case—which the justices agreed to take up last October, provoking alarm that "the Supreme Court could destroy the planet"—traces back to former President Barack Obama's Clean Power Plan, which never took effect.

Under former President Donald Trump, the EPA issued a widely criticized replacement for Obama's plan—the Affordable Clean Energy (ACE) Rule—but the U.S. Court of Appeals for the District of Columbia Circuit struck it down the day before Biden took office.

The New York Times reported Monday that in its brief, the Biden Justice Department "urged the court to dismiss the case, noting of the plaintiffs that 'the current absence of any federal greenhouse gas regulation causes them no tangible harm.'"

Given the lack of an active rule—which the Biden administration is expected to unveil at some point in the near future—some experts also expressed dismay that the GOP-led states and fossil fuel companies even made it as far as oral arguments.

"Trying to figure out the contours of EPA authority to regulate greenhouse gases when there's no regulation being defended is just kind of a weird thing for the court to consider," Case Western Reserve University law professor Jonathan Adler told the Times. "I was surprised when they took the case."

As the newspaper noted:

With the stakes high, each side has drawn legal backing from an array of supporters. Significantly, many of the nation's largest electric utilities—the companies that would be subject to environmental regulation—have filed legal briefs in support of the government. They are joined by 192 members of Congress, the U.S. Conference of Mayors, climate and public health advocates, and tech giants like Apple, Google, and Netflix.

Lining up behind the plaintiffs are 91 members of Congress and some of the nation's most powerful conservative groups, including Americans for Prosperity Foundation, a group affiliated with the libertarian Koch family and their billions.

Some members of Congress who have sided with the Biden administration made their positions clear again on Monday.

Referencing the report released Monday by a panel of scientists, Sen. Ed Markey (D-Mass.) said that "the documented life-threatening effects of the climate crisis and greenhouse gas emissions have never been clearer."

"But today, the Supreme Court heard arguments that are attempting to limit the Environmental Protection Agency's statutory authority to regulate dangerous climate pollution," he continued. "The stakes could not be higher: We must protect our communities and our climate, and we cannot allow a stolen court to steal our future."

Markey—who leads the push for a Green New Deal with Rep. Alexandria Ocasio-Cortez (D-N.Y.)—declared that "we need a transformation that centers the communities most at risk and supports our workers, we need an economy powered by clean energy, and we need investment at the scale and urgency demanded by this unrelenting crisis."

In a Monday tweet, Ocasio-Cortez said the report "is meant to be a tough wake-up call. But for those of us fighting to stop climate change, there is also hope."

"The fight isn't over," she added. "It's never been more important to keep going."


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