In the News

“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.”

Petitioners have asked SCOTUS to expand the rarely-used "major questions doctrine" to limit EPA's capacity to reduce greenhouse gas emissions from power plants. Dena Adler explains why their argument poses major problems.

“This [ruling] is a big deal,” says Richard Revesz. But, there are “all kinds of scenarios” for how things play out. Revesz acknowledges the potential for significant delays to result from even minor required changes in cost- benefit analysis. “It would take some time. It would be a project.” And he suggests another option for the agency, at least while the SCC litigation is pending, could be to rely on “unquantified” GHG benefits.” EPA, for example, could say a rule has significant GHG reductions that the agency believes justify the costs, while acknowledging it is unable to rely on the SCC values. “What the agency probably cannot do is to depend on quantified benefits,” Revesz says.

Max Sarinsky, a senior attorney at the Institute for Policy Integrity at New York University School of Law, called Cain’s ruling “legally incoherent,” arguing that it’s put federal agencies in a Catch-22 as they attempt to assess the cost of climate change in major decisions. “There’s a fair amount of legal precedent for these agencies to consider climate science,” Sarinsky said. “And this injunction prevents them from using these climate estimates.”

This paper’s recent editorial inappropriately maligns the federal government’s valuation of the harm caused by climate pollution as politically motivated.

It’s unusual for the supreme court to hear a case where there is no active rule to challenge, according to Richard Revesz, a leading expert in environmental law at the New York University School of Law. “It surprised me they took this case, this would be an excellent candidate for dismissal,” he said. “In normal times, when the court wasn’t so skeptical of regulation, this case would’ve been dismissed. It would have a pernicious consequences if it were allowed because it could severely restrict agencies’ ability to regulate and these power stations are such big emitters.”

The U.S. Supreme Court is set to hear oral argument in a case challenging the EPA’s authority to regulate greenhouse gas emissions from existing power plants. Richard L. Revesz, a professor at New York University School of Law, argues the court should dismiss the case because there is no regulation in place and none that would be revived because of anything the court might do.