The Supreme Court will review a crucial case about climate pollution from power plants. Now what?

(This post was co-authored by EDF legal fellow Jesse Hevia)

The Supreme Court has agreed to review a D.C. Circuit decision that struck down the Trump administration’s rule weakening regulations of carbon pollution from power plants.

Here’s a look at what happened – and what might happen next.

History of the case

In 2019, the Trump administration repealed the Clean Power Plan — the first nationwide limits on carbon pollution from existing power plants — and replaced it with the ineffective ACE rule, which did virtually nothing to limit dangerous climate pollution.

This year the D.C. Circuit rejected this approach and issued a rigorous opinion finding that the Trump administration relied on an overly restrictive interpretation of the Clean Air Act that lacked a basis in the statutory text.

Coal companies and their allies urged the Supreme Court to review that D.C. Circuit opinion regarding the scope of EPA’s authority to limit climate pollution from power plants. A few days ago – on October 29th – the Supreme Court agreed.

What’s at stake

Essentially, coal companies are seeking to limit which pollution reduction solutions and strategies are available to EPA when setting protections against power plant pollution. They claim that EPA is prohibited from considering effective measures that states and power plants already routinely use to reduce climate pollution.

Importantly, the Supreme Court denied review on a separate question, raised by coal company Westmoreland Mining Holdings, that sought to eliminate EPA’s authority to regulate power plants’ climate pollution under the relevant section of the Clean Air Act. The Supreme Court’s decision to decline review on that issue means that EPA’s statutory responsibility to limit power plant climate pollution is no longer a question in the cases. The decision not to hear Westmoreland’s question is also consistent with the Court’s prior decisions confirming EPA’s authority.

Challengers’ legal attacks come at a time when the impacts of climate change are harming Americans across the country, and our window to limit even more severe harm is closing fast. In the United States, from January to July 2021 alone, there were eight climate disasters totaling losses of over $1 billion each. Over the course of this year, hundreds of lives have been lost and areas impacted by natural disasters have been left with significant lasting economic impacts. New research finds that a child today is likely to live through roughly three times as many climate disasters as their grandparents.

While the effects of climate change impact many people across the country, these effects are often exacerbated by long-standing socioeconomic inequities, leaving underserved communities more vulnerable. Low-wealth, people of color, and tribal and indigenous communities are more likely to be impacted by environmental hazards, making strong climate protections imperative to protecting all communities.

Now what?

We anticipate this case will be briefed and argued in this Supreme Court Term, with a decision likely by late June 2022.

In the upcoming Supreme Court proceedings, EDF and allies, consisting of numerous environmental organizations, industry groups, power associations, and states, will defend the D.C. Circuit’s rigorous decision and protect EPA’s authority under the Clean Air Act. By striking down the ACE rule, the D.C. Circuit cleared the way for EPA to establish new safeguards against power plant pollution, working from a clean slate and reflecting the agency’s authority and responsibility to limit dangerous climate pollution.

The D.C. Circuit’s narrow and thoughtfully reasoned opinion was based on a careful examination of the statutory text and structure on the Clean Air Act. The court correctly affirmed that the Clean Air Act does not preclude EPA from basing pollution limits on the methods that companies and states themselves already use to reduce pollution.

The D.C. Circuit’s opinion is supported by the text of the Clean Air Act and by multiple Supreme Court decisions addressing EPA’s responsibility to regulate climate pollution under the Act. In Massachusetts v. EPA (2007), the Supreme Court held that greenhouse gases qualified as air pollutants subject to regulation under the Clean Air Act “without a doubt…. The statute is unambiguous.”

In American Electric Power v. Connecticut (2011), the Supreme Court found that the Clean Air Act “speaks directly to emissions of carbon dioxide” from existing power plants and identified a specific section of the Clean Air Act under which EPA could issue such protections. In Utility Air Regulatory Group v. EPA (2014), the Court reiterated that the Clean Air Act applied to climate pollution from power plants and held that new and modified industrial facilities are also subject to climate pollution limits.

Protective national limits on climate pollution have strong support from the American people on both sides of the aisle — in fact, there is more support than ever for climate-related action. A majority of Americans report they have seen the effects of climate change in their own communities and support efforts to reduce these impacts. Seventy-five percent of Americans believe that carbon dioxide should be regulated as a pollutant, and 68 percent — including majorities in every state — support strict carbon dioxide limits on existing coal-fired power plants.

A clear and explicit duty  

EPA has a clear and explicit duty under the Clean Air Act to protect the nation from dangerous climate pollution. Now, more than ever, we are experiencing the devastating effects of climate pollution and are seeking strong, national solutions. EDF will vigorously defend the D.C. Circuit’s well-reasoned decision and EPA’s clearly established authority under the Clean Air Act to reduce public-health harms through climate pollution safeguards that are effective and well attuned to the realities of power plant operations.

As we work together to fight for climate justice, we will also need to stand together to protect EPA’s bedrock authority to limit climate pollution from power plants. EDF will continue to press for climate action anchored in science and law to ensure climate justice through protective safeguards. And we will be before the U.S. Supreme Court defending the Clean Air Act’s core protections for the people and communities harmed by the clear and present danger of climate change.

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