In the News

On Monday, the court heard a case involving the Environmental Protection Agency’s ability to regulate greenhouse gas emissions. It was strange that the case was heard at all. Ordinarily the court wouldn’t bother with a case about a nonexistent regulation. “Here there is no regulation in place and no regulation will go into effect no matter what the court does,” as NYU law professor Richard Revesz told me. “This court is being extraordinarily activist,” Revesz told me.

West Virginia and its allies are seeking an "advisory opinion" from the Supreme Court to affect the upcoming rulemaking, Richard Revesz, a professor at the New York University School of Law, said, noting the court doesn't have the authority to issue them. Echoing arguments made by Prelogar, Revesz said the Clean Power Plan is obsolete and would need to go through a rulemaking process before it could be resuscitated. The court should dismiss the case, he said.

“As the U.S. solicitor general explained, there’s currently no regulation in place that puts costs on any petitioner,” said Dena Adler, a research scholar at the Institute for Policy Integrity at New York University’s School of Law who works on federal climate and energy policy. “The Clean Power Plan did not spring to life after the most recent decision in this case. Given the absence of any current regulation, it would make sense to dismiss the case as improvidently granted.”

While this case has been framed as a conflict between the environment and the power sector, it is in fact regulated entities that are coming out in support of EPA, said Max Sarinsky, senior attorney at the New York University Institute for Policy Integrity.

Today the Supreme Court hears oral arguments in the case of West Virginia v. EPA.  The case centers on the EPA’s ability to regulate greenhouse gas emissions in the power sector. Dena Adler cautioned against reading too much into the oral arguments. However, she did say to note “any questions from justices regarding the appropriate scope of the major questions doctrine."

Jack Lienke, an attorney with the Institute for Policy Integrity at New York University Law School, said it would be unusual for the court to issue a decision that would give EPA specific instructions about the kinds of emissions-reducing technologies it should tap in a future rule. “It would be very strange for the court to say, ‘Hey, EPA, here's some advice for you when you take another bite at this … certain strategies that we think are a good idea,’” he said. “The court doesn't give that sort of advice. The court waits until the agency makes a choice, and then, if someone challenges that choice as exceeding the bounds of the agency's authority, then the court weighs in.”

“This has been clear, literally since the beginning of the Republic,” said Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law. And Revesz said Morrissey’s remarks that West Virginia is looking for “guideposts” from the court show clearly that he is asking the court for an advisory opinion. Revesz has argued that the Supreme Court should do what it has done in roughly two cases every term, dismiss the case as “improvidently granted.” Max Sarinsky, a senior attorney at the Institute for Policy Integrity at NYU School of Law, thinks Cain’s injunction may not be in place long enough to have a lasting effect on Biden’s climate policy. 

The U.S. Supreme Court has rarely invoked the “major questions” doctrine to invalidate agency regulations. But without any regard for the Court’s jurisprudence, the Trump Administration routinely relied on this doctrine in service of its deregulatory assault on the administrative state. Courts should not rely on the number of public comments to assess the legality of regulations.

In the most important environmental case in more than a decade, the Supreme Court on Monday will hear arguments in a dispute that could restrict or even eliminate the Environmental Protection Agency’s authority to control the pollution that is heating the planet. “Just because the opponents are particularly shrill in their objection doesn’t change the fact that this regulation is no different than hundreds of regulations that the agencies have produced since the New Deal — just as Congress intended them to do,” said Richard Revesz, who teaches environmental law at New York University and filed a brief in support of the administration.

This podcast discusses the upcoming climate change case, West Virginia v. EPA, with Lisa Heinzerling and Kirti Datla. The discussion of Policy Integrity's Supreme Court amicus brief begins at 41:17.