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In a nutshell, the SCOTUS case is putting Environmental Protection Agency authority to regulate green gas emissions on trial and how the high court rules could handcuff federal agencies, including those near and dear to agriculture — hello USDA and FDA — in consequential ways.

To understand what is at stake a little … OK a LOT … of historical background is needed.

The Clean Air Act gives the EPA the power to regulate air pollutants in the United States — from both stationary and mobile sources. In 2015, EPA adopted the Clean Power plan in order to regulate carbon dioxide from power plants. Part of the plan established procedures for states to develop plans to limit carbon dioxide emissions from existing plants.

The EPA plan would have required states to engage in “generation shifting.” Gen shifting requires states to shift higher-emitting sources (think coal) to lower-emitting sources, wind, solar and natural gas to name a few.

Needless to say a number of states filed lawsuits claiming EPA has exceeded its authority. The path to the Supreme Court has been messy and not without controversy:

  • 2015: 27 states challenged the CPP in a case that would become known as West Virginia v. U.S. Environmental Protection Agency. The plaintiffs argued that “petitioners will show that the final rule is in excess of the agency's statutory authority, goes beyond the bounds set by the United States Constitution, and otherwise is arbitrary, capricious, an abuse of discretion and not in accordance with law.” Plaintiffs argued that because the Clean Air Act did not specifically discuss generation shifting, Congress did not give EPA the authority to implement it. The states also asked for a stay to prevent generation shifting from going into effect while the case was proceeding. 
  • 2016: The D.C. Circuit Court of Appeals denied the stay motion, saying that petitioners had not “satisfied the stringent requirements for a stay pending court review.”
  • March 28, 2017: President Trump signed the Promoting Energy Independence and Economic Growth executive order requiring EPA to review the CCP and directing the attorney general to request a stay on the CPP. On the same day, the Justice Department asked the D.C. Circuit to hold the case in abeyance for 30 days after completion of a review and potential new rules.
  • April 28, 2017: The D.C. Circuit put the CCP challenges on hold while EPA reviews the plan.
  • 2019: EPA repeals the CPP, finding the Clean Air Act did not authorize the agency the power to require states to adopt energy generation shifting practices. 

That might have been the end of generation shifting as a way to reduce carbon dioxide pollution except, as it turns out, there were states hiding in the weeds that believed it is an essential piece of combating climate change. So here we go again.

Twenty three states and numerous cities filed the lawsuit American Lung Association v. Environmental Protection Agency to challenge the repeal. Plaintiffs argued the Clean Power plan directed EPA to identify the “best system of emission reduction,” which could potentially be generation shifting. On January 19, 2021 the D.C. Court of Appeals overturned EPA's 2019 repeal of the CPP, ruling that the Clean Air Act “does not unambiguously bar a system of emission reduction that includes generation shifting.”

After the ruling, the Biden Administration requested the repeal not go into effect while it was drafting new section 7111 language for the Clean Air Act. The D.C. Court of Appeals granted the request … and then, given all that has already happened, the plaintiffs from West Virginia v. Environmental Protection Agency woke from their slumber to submit a writ of certiorari to the U.S. Supreme Court over the whole mess suggesting the EPA was wrong to repeal the CPP because:

“Ultimately, EPA’s efforts were no ordinary regulatory action. And no matter “how serious the problem” at stake, an agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.” 

In its response to the petitioners, EPA addressed the huge 2-ton elephant in the room:

“Although some regulated plants had made dire predictions that the emission limits in the 2015 rule would transform the power industry, the rule was stayed before it had any effect, and those limits were swiftly achieved through market-based forces alone. In the decision at issue here, the court of appeals vacated the repeal of the 2015 rule, but stayed the vacatur indefinitely pending further rule making because the rule was obsolete. As a result, no regulation currently applies. Petitioners, who oppose stricter regulation, are not injured by that status quo and do not ask this Court to change it. Instead, they urge the Court to constrain EPA’s authority in future rule makings.”

But hey, despite the fact there wasn't an actual law on the books to review, the Supreme Court said ‘what the heck’ and heard oral arguments on Feb. 28. 

And how the high court rules could open a huge can of worms for federal agencies. Potentially, the court could decide the time is ripe to address the major questions doctrine, which suggests when a potential rule will have “vast economic and political significance” a court should not assume that Congress delegated important policy decisions to government agencies unless it has done so explicitly.

It doesn't take much brainpower to recognize the lack of clarity. The specific question is exactly under what circumstances would the major questions doctrine apply in application of section 7111 of the Clean Air Act for the now defunct Clean Power Plan? What qualifies as vast economic and political significance? Is there a one size fits all definition?

During oral arguments, the Supreme Court grappled with the question and how it rules later this year could be earth shattering. Justices expressed skepticism at points during the oral arguments that the Clean Air Act gives EPA power to set national economic policy in the name of pollution.

There are a number of outcomes.

The high court could simply rule on narrow grounds the merits of the CPP. It could rule for the EPA because the CPP is defunct and the EPA has said it won't revive it. Or it could rule for the plaintiffs’ finding, specifically in the case at hand, that the section 7111 of the Clean Air Act does not allow EPA to require states to adopt generation shifting policies.

But the Supreme Court could go farther — much, much farther — and clarify when the major questions doctrine applies to federal agencies. A broad interpretation of the major questions doctrine would allow judges nationwide to potentially strike down statutes simply based on whether or not they agree with the law rather than the merits. In short, it opens the opportunity for all kinds of judicial mischief.

The best option — and truly the most viable legal option — would be to simply dismiss the case.  For the Supreme Court, and any court really, to rule on hypotheticals is dangerous to our Constitution.

About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at dave.dickey@investigatemidwest.org.