West Virginia, Mining Groups Push Back on EPA Climate Authority

Dec. 13, 2021, 9:24 PM

Republican-led states and mining groups filed opening volleys at the Supreme Court on Monday over greenhouse gas authority in a pivotal case that could rattle the Biden administration’s ability to set climate regulations.

Congress never gave the Environmental Protection Agency broad authority to “weaponize” Sec. 111(d) of the Clean Air Act and create sector-wide rules, according to the brief filed by West Virginia on behalf of a coalition of other states.

“Section 111 of the Clean Air Act does not clearly give EPA authority to upend the power industry,” the brief said.

The high court picked up the petition last month, leaving advocates and attorneys worried that the justices could hand down a ruling that stymies climate action from the executive branch.

“A win for the coal interests would cripple the nation’s ability to confront the climate crisis,” Natural Resources Defense Council attorney David Doniger wrote in a memo on the case. “That’s because power plants account for nearly one third of the nation’s carbon footprint.”

Though no new rules on greenhouse gas limits for power plants on the books yet from the Biden Administration—and the Clean Power Plan is currently off the table—the states and groups had petitioned the court to review a lower court decision that struck down the Trump administration’s industry-friendly Affordable Clean Energy Rule.

Limits of Authority

Justices are considering one question in this case, whether Congress gave the executive the authority to craft rules that transform the entire sector, rather than regulating source-by-source.

The Clean Power Plan, which never went into effect, was EPA’s attempt to “regulate practically any kind of emissions source across the economy out of existence,” and justices need to re-draw the line for EPA’s authority, Westmoreland Mining Holdings LLC wrote in its brief.

“EPA was constrained to repeal the Clean Power Plan because Congress did not clearly authorize the agency to decide the major question of whether and how to restructure entire sectors of the economy so as to achieve emissions reductions,” attorneys for the group said in the brief.

North Dakota and the North American Coal Corp. are also petitioners in the case.

The case is: West Virginia v. EPA, U.S., No. 20-1530, opening briefs filed 12/13/21

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com

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