https://www.sierraclub.org/articles/2022/01/sierra-club-and-partners-file-br...
Sierra Club and Partners File Brief in High Stakes West Va v. EPA Case By Andres Restrepo and Joanne Spalding, Sierra Club USA, January 19, 2022 The Sierra Club, together with a coalition of environmental organizations, public health advocacy groups, and others, filed a brief yesterday with the U.S. Supreme Court in the case West Virginia v. EPA. The brief forcefully opposes an attack on the Environmental Protection Agency’s (EPA’s) Clean Air Act authority launched by right-wing politicians and coal industry executives allied with them. With the support of polluter-backed special interest groups and other far-right extremists, the petitioners in this case are asserting a legal theory invented by the Trump Administration that would gut EPA’s ability to rein in climate-disrupting carbon dioxide pollution from existing fossil fuel-burning power plants under section 111(d) of the Clean Air Act.
One year ago, the U.S. Court of Appeals for the D.C. Circuit rejected those arguments and ruled in favor of Sierra Club and its allies; the case is now before the Supreme Court. The Court’s decision in this case could severely undercut EPA’s power to protect public health and welfare by combatting the climate crisis. As our brief makes clear, EPA has not only the authority, but the duty to issue meaningful safeguards against carbon pollution from power plants, despite the Trump Administration’s previous efforts to read that authority out of the law. More to the point, our brief demonstrates that the Court should promptly dismiss this case without addressing the legal merits: the Court has no jurisdiction over this case since no EPA regulations currently exist that implicate these legal questions.
Unfortunately, the coal companies and politicians litigating this case are not content to focus on the narrow question of statutory interpretation at hand. Instead, they are seizing this case as an opportunity to strike a body blow against EPA’s authority to carry out vital Congressional directives. The petitioners’ briefs to the Court focus largely on what is known as the “major questions doctrine,” a legal principle concerning the interpretation of laws and their implementation by federal agencies. In certain prior cases, the Supreme Court has held that when a federal agency interprets a Congressional statute in a way that would have “vast economic and political significance,” a court will look for a “clear Congressional authorization” in the governing law, rather than interpret statutory silence or ambiguity as permitting the agency’s interpretation.
In this case, the petitioners – coal companies and their political allies – are trying to use the major questions doctrine to strip EPA of its authority to consider any emission reduction techniques under section 111(d) of the Clean Air Act except those that can be implemented within the walls of each individual plant. Their theory would permit EPA to adopt only exceedingly weak measures that would shield power companies from the obligation to pay anything other than minimal costs for the dangerous pollution their plants emit. However, they ignore the fact that the Supreme Court already held in AEP vs. Connecticut that “Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from powerplants,” and that section 111(d) “speaks directly” to EPA’s authority in this regard.
The petitioners’ legal theory, and their understanding of the major questions doctrine, would decimate EPA’s authority to take meaningful action to reduce power plants’ dangerous carbon dioxide emissions. But the damage wouldn’t end there. They are directly targeting federal agencies’ authority in general to develop policies and take action to protect the public’s health, welfare, and safety. Indeed, just yesterday, the politician leading the attack on EPA’s regulatory authority–West Virginia Attorney General Patrick Morrissey–told the press that the petitioners’ legal theory in this case is “not only about our coal-fired power plants,” but also “deals with consumer-related matters” and raises “fundamental questions about the size and scope of government.”
Here’s what that really means: Morrissey and his allies want to use this case to torpedo the ability of public servants at government agencies to do their Congressionally-mandated duty to enforce laws and safeguard our air and water, ensure that businesses from agriculture to telecommunications to transportation treat consumers fairly, and protect the health of our families and communities. A ruling in their favor could send us back to the period of American government that preceded the Great Depression, commonly known as the “Lochner era,” when corporate power went largely unchecked and federal agencies had little authority to protect the public. The sweeping ruling these politicians and coal companies are pushing for would undermine the will of the people, a century of laws, and decades of legal precedent.
We are confident that each of their claims lacks merit, and our brief explains exactly why. In response to this blatant and dangerous overreach, the key points of the brief are as follows:
First, there is no standing for this attack. This case should be dismissed because the petitioners lack standing to pursue their claims. Their arguments focus on the implementation of the Obama-era Clean Power Plan–a policy that never went into effect, and whose emission targets were already reached a decade ahead of schedule due to industry trends, even without that regulation in place. Instead, EPA plans to issue a new rule on a blank slate to limit power plants’ carbon dioxide emissions, and the petitioners’ preemptive attacks against those standards are entirely speculative. Rather than raise their legal claims in the abstract, the petitioners must await the result of EPA’s new rulemaking, which will both define the issues for judicial review and avoid entangling the court in an unnecessary advisory exercise over regulations that never went into effect.
Second, even if this were a live issue instead of speculation, the petitioners’ arguments would fail because the Clean Air Act gives the EPA clear authority to act. Section 111(d) of the Clean Air Act simply does not include the restrictions on EPA authority that the petitioners claim it does. Just as the Trump Administration did, the petitioners contort the plain meaning of the statute and read into it words that Congress did not include. This is the only way they can support their interpretation of section 111(d), which would severely and unjustifiably restrict EPA’s authority to limit carbon dioxide pollution from existing power plants.
Third, the “major questions” issue does not apply in this case. Precedent makes clear that the major questions doctrine is relevant when the policy in question would have “vast economic or political significance.” Yet the Clean Power Plan never even took effect, and market-driven trends in the electric power sector have rendered its emission-reduction targets immaterial. The Supreme Court has never applied major questions principles to an agency rule that is defunct, not under review, and that would have no meaningful impact even if it were reinstated. In any event, Congress included clear instructions in section 111(d) for EPA to follow in regulating air pollution; those instructions do not include the limits that the petitioners claim, and that is all the specificity that the law requires.
As our brief makes clear, the extreme positions of the petitioners are out of line with the Clean Air Act and with the governing legal precedent. The case should therefore be dismissed; otherwise, the Supreme Court should uphold the D.C. Circuit’s decision rejecting the legal theory that the petitioners use to attack EPA’s Clean Air Act authority.
As we look ahead to oral arguments before the Supreme Court, which will occur on February 28, Sierra Club and its partners will continue to beat the drum in support of our position in this case. More broadly, we will continue to use all of our tools of advocacy to ensure that we defeat the vision for our climate, our country, and our world held by the coal industry and its political allies, like Patrick Morrissey. And we will not stop in our work to secure a just and prosperous future that provides 100% clean and renewable energy for all.
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