Bloomberg Law
April 29, 2021, 7:03 PMUpdated: April 29, 2021, 9:09 PM

Republican AGs Press Supreme Court on EPA Climate Authority (2)

Ellen M. Gilmer
Ellen M. Gilmer

West Virginia and other states are taking a critical climate question to the U.S. Supreme Court, asking the justices to embrace a narrow interpretation of federal authority to regulate planet-warming emissions.

State Attorney General Patrick Morrisey (R) filed a petition on Thursday, seeking to overturn a lower court decision that struck down the EPA’s Affordable Clean Energy rule, the Trump administration’s industry-friendly approach for addressing greenhouse gases from the power sector. The case, if granted, would be the biggest climate question to reach the Supreme Court in more than a decade.

The U.S. Court of Appeals for the District of Columbia Circuit issued the contested ruling in January, rebuking the Environmental Protection Agency for adopting a climate rule that didn’t actually mandate emissions reductions.

The court rejected the previous administration’s argument that the Clean Air Act allowed the EPA to craft emissions restrictions only “at the source” of power plants, rather than taking the electric grid-wide approach used in the Obama-era Clean Power Plan.

“EPA now has a judicial edict not to limit itself to measures that can be successfully implemented at and for individual facilities,” the new petition says. “It can set standards on a regional or even national level, forcing dramatic changes in how and where electricity is produced, as well as transforming any other sector of the economy where stationary sources emit greenhouse gases.”

The EPA declined to comment, citing the pending nature of the litigation.

‘Vanishingly Small Chance’

The Supreme Court has previously expressed interest in the EPA’s regulatory authority over greenhouse gases, taking the unprecedented step of freezing the Obama-era Clean Power Plan before it was litigated in lower courts.

But the states’ new petition faces a “vanishingly small chance” of being granted, Vermont Law School professor Patrick Parenteau said, as the Biden administration has already said it doesn’t plan to revive the Trump or Obama rules. “Better to wait to see what EPA comes up with,” he said.

Harvard Law professor Richard Lazarus agreed, but noted that the case could present a test for the conservative Supreme Court.

“The petition provides an opportunity to measure to what extent the new six-Justice conservative majority on the Supreme Court is aggressively looking for opportunities to cut back on EPA’s authority even in the absence of the normal indicia necessary for Supreme Court review,” he said in an email.

Environmental lawyers who support a more aggressive approach to climate regulation criticized West Virginia’s filing as a wasteful attack on clean air.

“These state Attorneys General seem to be wasting taxpayer money just to attack our nation’s clean air laws,” Environmental Defense Fund lawyer Vickie Patton said in an email. “We should, instead, work to provide all Americans with cleaner, healthier air.”

Repeated Challenges

West Virginia’s petition comes as Morrisey reprises his role as a foil to Democrat-backed environmental regulation. He led his state in repeated challenges to Obama-era actions, and has joined Republican attorneys general in several lawsuits so far targeting Biden policies.

West Virginia led a multistate lawsuit over the Obama administration’s broad Clean Power Plan. The Supreme Court stayed the rule in 2016, but the litigation was sidelined when President Donald Trump took office, and no court resolved the legal arguments against the regulation.

The D.C. Circuit tackled a central part of the argument in its January ruling in the Affordable Clean Energy rule case, concluding the Clean Air Act provides “no basis” for the contention that the EPA’s regulation of the power sector must be constrained to equipment at power plants.

“If EPA lacks such expansive authority, as we argue, the Supreme Court should make that clear now,” Morrisey said in a statement Thursday.

The filing includes West Virginia, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming; and Mississippi Gov. Tate Reeves.

The case is West Virginia v. EPA, U.S., 4/29/21.

(Adds EPA response in sixth paragraph.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editor responsible for this story: Seth Stern at