Bloomberg Law
Feb. 24, 2022, 9:00 AM

Greenhouse Gas Regulation: SCOTUS Should Decide Not to Decide

Richard L. Revesz
Richard L. Revesz
New York University School of Law

The U.S. Supreme Court on Feb. 28 will hear oral argument in a case challenging the Environmental Protection Agency’s authority to regulate greenhouse gas emissions from existing power plants. How should the court decide the case? By declining to decide it at all.

The justices can’t properly evaluate the legality of EPA’s limits on the power sector’s emissions—because no such limits currently exist.

During the Obama administration, the EPA issued the Clean Power Plan, which sought to reduce power plants’ carbon dioxide emissions to 32% below 2005 levels by 2030. The Trump administration replaced that plan with the toothless Affordable Clean Energy Rule, which risked increasing emissions in many states compared to no regulation at all. On Trump’s final day in office, the U.S. Court of Appeals for the District of Columbia Circuit struck that action down as unlawful.

After taking the reins at the EPA, the Biden administration did not ask the Supreme Court to review that decision, which was unsurprising given the administration’s commitment to strong action on climate change. The EPA also made clear that it would not seek to revive the Clean Power Plan, which changed market conditions had rendered obsolete, as even a party seeking Supreme Court review acknowledged. Instead, it would develop a new rule.

That new rule has not yet been proposed. So, the Supreme Court cannot strike down any regulation currently in place—because there is no regulation in place.

Similarly, no regulation would spring back to life because of anything the court might do. All the court could theoretically do in this case is provide guidance on what the EPA’s future regulation could look like—a quintessential advisory opinion of the sort of that federal courts unquestionably lack the power to give.

Patrick Morrissey, the attorney general of West Virginia, who is playing a leading role in this litigation, explicitly indicated in a recent public appearance that he is seeking an advisory opinion. After acknowledging that no EPA regulation is currently in place, he emphasized the importance of getting “clarity,” whether “for the Biden administration or a future administration,” and said that the court’s provision of “additional guideposts” setting forth the limits of agency authority “might help Congress do its job a little bit better.”

But the provision of such legal “clarity” and “guideposts” untethered from a live dispute over an actual policy, is the textbook definition of an advisory opinion.

Such opinions threaten the proper functioning of the separate branches of government—a risk that the Supreme Court recognized in its earliest days and reaffirmed as recently as last year.

Thankfully, the Supreme Court has a procedural device to deal with precisely this problem. Following the oral argument, it should dismiss the case as improvidently granted.

The court does this twice a year on average, when it discovers that a case is not well suited for a decision. So, if the court concludes—as it should—that all it can do is give guidance to the EPA on future regulation, dismissing instead of deciding the case is the only appropriate course of action.

Why the Court Should Dismiss This Case

Even if advisory opinions were permissible, which they are not, this case would be a particularly bad vehicle for issuing one because it does not present a discrete legal question with a yes-no answer that would clearly be relevant to a future rule. This case is not about whether the EPA has the authority to regulate greenhouse gas emissions under the Clean Air Act. The Supreme Court already said it does well over a decade ago.

Neither is it in doubt that the EPA can regulate power plants’ greenhouse gas emissions under the specific Clean Air Act provision at issue in this case. In 2011, the court decided that the EPA has this authority, too. No party now questions either of those decisions.

What is at stake is the form a new regulation might take. Because there are many options on the table, the Supreme Court’s attention will not be focused on a discrete question clearly relevant to the agency’s future rulemaking. The court’s advisory opinion will therefore not only be inappropriate, but also potentially not even useful.

Moreover, the challengers of the lower court decision are perniciously taking advantage of the fact that there is no actual regulation for the court to review. For example, the North American Coal Co., whose counsel will argue the case, previously challenged the Trump rule.

Normally, a party may not defend a rule it previously attacked. The only reason that it can try to get away with this improper move is because, in the absence of a specific rule for the court to review, it is not altogether clear what is at issue in this case, which is why the court should not decide it.

Challengers Distort the Facts

Further, the challengers are seeking to distort the relevant facts. In attempting to justify its repeal of the Clean Power Plan, the Trump administration claimed that the repeal would have no adverse greenhouse gas impacts.

Supporting this position, Republican-led states and coal companies noted that, even though the plan had never gone into effect, carbon-dioxide emissions from the power sector had decreased “almost 30%” since 2005 due to market-driven changes and that the country was on track to meet the plan’s goal “a decade ahead of schedule.”

Yet now, the same parties maintain (in debunked studies contrary to the findings of both the Obama and Trump administrations) that compliance with the obsolete Clean Power Plan would cost hundreds of billions of dollars in higher electricity costs, and, moreover, “displace 40 percent of coal generation, and impose $64 billion in costs to replace the plants that were forced to close.”

The parties seeking Supreme Court review have characterized the case’s stakes inconsistently, in whatever way was most advantageous in a particular proceeding. And, the supposedly apocalyptic consequences that would result if the court does not intervene are flatly contradicted by the very power-sector actors that would allegedly suffer these consequences—and that oppose challengers’ efforts to use this non-case to weaken the EPA’s ability to address climate pollution. The challengers’ changing claims have created uncertainty about the legal issue at hand, making this case an especially bad candidate for a court decision.

The EPA has committed to regulating the greenhouse gas emissions of existing power plants, in due course. The Supreme Court will have the opportunity to review that rule when it is challenged. But for now, the court should invoke the tool that it developed precisely for cases like this one: It should dismiss the case as improvidently granted.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Richard L. Revesz is the AnBryce Professor of Law and Dean Emeritus at the New York University School of Law, where he directs the Institute for Policy Integrity. He filed an amicus brief in this case as an expert in administrative law and environmental law.