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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. 

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. 

On February 28, the Supreme Court will hear West Virginia v. Environmental Protection Agency. An important amicus brief filed by the NYU law professor and former dean Richard L. Revesz, one of the nation’s foremost environmental law scholars, makes a compelling argument that the factors urged by regulatory opponents for triggering the major questions doctrine are unworkable and fail to distinguish the CPP from many other regulations. He shows how the EPA, under administrations of both parties, has relied in the past on approaches similar to those that the agency employed in the CPP. The CPP is not so novel or unanticipated in its use of regulatory strategies that the major questions doctrine should be called into play.

“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.”

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.”