In the News

KALW Radio will discuss the Supreme Court’s ruling on EPA’s power to force power plants to cut down their carbon pollution: how will this ruling impact President Biden’s climate agenda, including plans to decarbonize the energy grid by 2035? Jack Lienke, regulatory policy director of the Institute for Policy Integrity, will be a speaker.

Supreme Court justices are set to rule Thursday on a pivotal case that could drastically alter the EPA’s ability to regulate on climate change. The case, West Virginia v. EPA, centers on whether the Environmental Protection Agency overreached in regulating greenhouse gas emissions from power plants under the Clean Air Act. At stake is whether EPA has the authority to regulate “beyond the fenceline,” meaning a wider sector approach versus plant-by-plant. But more broadly, justices have the opportunity to deal a major blow to the EPA’s and other federal agencies’ regulatory ability.

Over the past two weeks, plaintiffs and their amici have filed merits briefs in the social cost of greenhouse gases litigation in the Fifth Circuit. These briefs leave much to unpack — and much to be desired. The lawsuit, filed by Louisiana attorney general Jeff Landry and nine other Republican state attorneys general, seeks to shut down the Interagency Working Group on the Social Cost of Greenhouse Gases and prohibit government agencies from using the best available science to weigh the economic costs of climate change.

“Everyone around this office has been anxiously hunched over their computer at 10 a.m. hitting refresh over and over again at the 10-minute mark to see what our fate will be,” said Jack Lienke. “I don't quite understand why it's done this way, in which the opinions are released every 10 minutes,” he added. “It creates a lot of suspense.” Environmental lawyers and climate activists across the country have been bracing for the Supreme Court's ruling in West Virginia v. EPA.

“Normally courts review actual regulations, and there is no regulation to review right now,” New York University law professor and environmental law expert Ricky Revesz told CNN. “Whatever the court does will involve speculation, and courts don’t normally—they stress this—give advisory opinions. That’s not what courts do.” The Supreme Court is expected to issue its ruling on West Virginia v. EPA this week, potentially deciding the future of the federal government’s ability to limit the effects of climate change—or even to address the looming climate disaster at all. Here’s what you need to know. 

“No decision today,” wrote Jack Lienke, regulatory policy director of New York University School of Law’s Institute for Policy Integrity, on Twitter yesterday. “More stomach-churning mornings ahead.” Environmental lawyers this week are greeting each Supreme Court opinion day with a mix of anticipation and dread — hearts pounding, stomachs flipping — as the justices get ready to issue their ruling in the blockbuster EPA climate battle. The court, which is likely in its last week of opinion releases, issued three decisions in 10-minute intervals starting at 10 a.m. yesterday. None of them was West Virginia v. EPA, which could curb the federal government’s power to regulate climate and other key issues.

Climate regulation could be the next Democratic priority to fall to the Supreme Court. West Virginia argued the EPA doesn’t have the authority to set standards that encompass an entire sector of the energy industry and, rather, is limited to only setting restrictions on individual power plants. Max Sarinsky, a senior attorney at the Institute for Policy Integrity, however, said there are some power plant-specific regulations that can be effective at fighting climate change. “Source-specific regulations like heat rate improvements, co-firing, carbon capture or some combination of various approaches — they can be quite environmentally effective,” Sarinsky said. 

Leading farm groups are calling on the Securities and Exchange Commission to exempt agriculture from proposed requirements that corporations start disclosing the greenhouse gas emissions in their supply chains. But supporters of the rule argue the ag sector’s concerns are overblown and that industry emissions estimates will be sufficient to comply with the disclosure rules. “Some small farmers and businesses have submitted comments indicating their concern that the compliance costs of the rule would reach them. However, large public companies regularly comply with voluntary emissions reporting standards through estimated, rather than measured, supply chain emissions,” according to comments provided by the Environmental Defense Fund and the Institute for Policy Integrity at the New York University School of Law.

The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming. But legal experts say that the Republican attorneys general and their allies have taken such strategies to a new level, in their funding and their tactics. “They’ve created out of whole cloth a new approach to litigating environmental regulations, and they’ve found sympathetic judges,” said Richard Revesz, a professor of environmental law at New York University.

The impacts of climate change are often described as small changes in temperature or massive emissions, which doesn’t always make sense to people, said Peter Howard, an economist at the Institute for Policy Integrity. “Putting it in dollar terms helps the public really understand what the magnitude of the climate costs are.”