CHARLESTON, W.Va. — The U.S. Supreme Court will hear oral arguments next week on the challenge to the Environmental Protection Agency and its authority to regulate greenhouse gas emissions.
West Virginia is leading multiple Republican-led states and coal mining companies in the lawsuit. The Supreme Court agreed in October to take up the case, and the high court has scheduled arguments for Feb. 28.
Justices will review a January 2021 decision from the U.S. Court of Appeals for the District of Columbia Circuit; judges ruled 2-1 against a Trump administration policy rolling back rules on carbon dioxide emissions. West Virginia and other petitioners argue the decision gives the EPA broad authority to regulate emissions, contending this oversight would impact electricity production and harm the coal industry.
During a forum last week in Washington, D.C. hosted by the National Press Club, West Virginia Attorney General Patrick Morrisey and Indiana Attorney General Todd Rokita said Congress and other elected officials should have the authority to dictate environmental policies.
“I think this is really about a fundamental question of who decides the major issues of the day,” Morrisey said. “Should it be unelected bureaucrats, or should it be the people’s representatives in Congress? That is what this case is all about. It’s very straightforward.”
The Trump administration installed the Affordable Clean Energy rule in 2019, replacing President Barack Obama’s Clean Power Plan. The Trump rule established guidelines to lower emissions by as much as 1.5% by 2030, but it also gave states flexibility in developing standards.
The federal appeals court ruled the Trump administration misinterpreted the Clean Air Act and national air quality standards when drafting the regulation.
“We thought that was consistent with the Clean Air Act Authority,” Morrisey said of the Affordable Clean Energy rule. “Notably, we never said that the EPA lacks any authority to address climate change. We just have a much different definition of what’s permissible under the Clean Air Act and the major questions doctrine as opposed to some of my colleagues on the other side.”
The EPA has yet to implement a replacement rule.
Morrisey warned about the possible economic effects of upholding the appellate court’s decision, noting how much of West Virginia’s economy relies on fossil fuels. The U.S. Energy Information Administration reports West Virginia ranks fifth among states regarding energy production and second among coal-producing states. Coal-fired power plants generate 88% of West Virginia’s electricity.
“This debate about the size and scope of government has profound effects across our nation, and especially in West Virginia,” he said. “It doesn’t need to be echoed too much, but West Virginia is still very heavily dependent on some of the types of fuels that would be most impacted by the Biden administration and a number of their proposals.”
U.S. Sen. Shelley Moore Capito, R-W.Va., as well as Reps. Alex Mooney, R-W.Va., and Carol Miller, R-W.Va., were among 91 federal legislators who signed a brief last December supporting the petitioners.
“Decisions regarding greenhouse gas emissions and the power sector are major policy questions with vast economic and political significance,” the lawmakers said. “Only elected members of Congress, representing the will of the people, may decide these questions. The EPA’s attempt to issue expansive regulations cannot stand in the absence of clear congressional authorization.”
Multiple public utilities and holding companies argue the petitioners’ argument lacks standing because the EPA has not announced new rules.
“The decision below did not alter the longstanding regulatory framework in which the EPA, States, and regulated industries have worked together using flexible mechanisms under the Clean Air Act to reduce power sector emissions,” the utilities added in an August 2021 brief. “The decision did not mandate a specific rule and would not cause the massive consequences Petitioners suggest.”
Morrisey stressed the main push to secure the Supreme Court’s review was the argument regarding the EPA’s authority.
“We’re talking about the wrestling match between the legislative branch of our federal government and our executive branch of our federal government, and how we have that balance of power between the two,” he said.
EPA Administrator Michael Regan said last week the agency will present “a suite of regulations” to the coal industry so companies can understand the investments necessary to protect the environment and public health.
“I think that there are a lot of public health regulations that span air quality, water quality and land management that these utilities have to take into consideration to determine, again, what investments will they have to make today to comply with those laws and what the longevity of these various coal plants are across the country,” he said.