The Supreme Court Case That Could Doom U.S. Climate Goals

[0] From the New York Times, I'm Sabrina Tavernisi.

[1] This is the Daily.

[2] As the Supreme Court term comes to a close, it's expected to rule on two landmark cases involving abortion and guns.

[3] But it will also decide another major case, one that is getting far less attention.

[4] Today, my colleague, Coral Davenport, on a case involving climate change, that could take away much of the federal government's power to regulate.

[5] It's Thursday, June 23rd.

[6] So, Coral, tell me about the Supreme Court case you've been following.

[7] So this case is called West Virginia v. EPA.

[8] It is certainly the largest and most important climate change case to come before the Supreme Court in over a decade.

[9] Fundamentally, the case is about a group of Republican attorneys general, mostly from fossil fuel -producing states, West Virginia, Kentucky, Texas, who are suing the federal government over its authority to regulate greenhouse gases from power plants.

[10] And even though it's in front of the Supreme Court now, it actually goes back to the Obama administration, back to 2014.

[11] You know, Obama was the first president who said, I am going to prioritize dealing with climate change.

[12] He tried to pass a major climate change law through the Congress.

[13] Of course, that famously failed.

[14] And after that happened and after Democrats lost control of the Congress.

[15] I'm going to be working with Congress where I can to accomplish this.

[16] Obama said...

[17] But I'm also going to act on my own if Congress is deadlocked.

[18] I've got a phone and a pen, and I'm going to start doing these things myself.

[19] I've got a pen to take executive actions where Congress won't.

[20] And I've got a telephone to rally folks around the country on this mission.

[21] He was referring to executive action and executive authority on many fronts, but climate change was really the biggest way in which we saw Obama try to assert that power of Penn. And what he did was...

[22] Right now, our power plants are the source of about a third of America's carbon pollution.

[23] He went to the EPA.

[24] But there have never been federal limits on the amount of carbon that power plants can dump into the air.

[25] Think about that.

[26] And he directed them to do this massive, sweeping, very unusual regulation.

[27] And today we're here to announce America's clean power plan.

[28] That was effectively designed to shut down these coal and gas fire power plants.

[29] A plan two years in the making and the single most important step America has ever taken in the fight against global climate change.

[30] and kind of totally transform the electricity sector of the U .S., sort of how we turn on the lights in America.

[31] So, Coral, he couldn't do this through Congress, right?

[32] He tried and he failed.

[33] So he did it himself.

[34] And I think people are largely familiar with this idea of executive action.

[35] You know, Obama was famous for them, right?

[36] But what exactly was this executive action based on legally?

[37] I mean, how did he have that authority?

[38] So in order to do this, Obama relied on a very old and powerful tool, the 1970 Clean Air Act.

[39] Clean Air Act is known as the most powerful environmental law in the world.

[40] Each of us all across this great land has a stake in maintaining and improving environmental quality.

[41] It was signed into law in 1970 by Richard Nixon.

[42] The time has come.

[43] for man to make his peace with nature.

[44] And it was designed to fundamentally give this brand -new agency, the Environmental Protection Agency, a lot of authority to clean up the nation's air and water.

[45] These problems will not stand still for politics or for partisanship.

[46] They demand to be met now.

[47] And one of the things that makes the Clean Air Act very, very powerful is that its authors understood in the 1970s, there's probably going to be a lot of environmental problems of the future.

[48] Pollutants that are out there that we don't even know about.

[49] And we want to make sure that this agency, that the executive branch, can go after this stuff that we don't even know about.

[50] So we want to make this broad and we want to give them a lot of authority.

[51] So it doesn't say, hey, EPA, you explicitly have the authority to, you know, regulate carbon dioxide pollution from coal -fired power plants to deal with global warming.

[52] You know, they didn't really know that that was an issue then.

[53] They were imagining a future that had not yet happened.

[54] Exactly.

[55] And so there are a lot of pieces in the Clean Air Act that are not specific, that are sort of broad and vague and that haven't really been used before.

[56] And so when Obama, you know, realized, okay, I can't do a new climate change law, they sat down, they said, all right, we've got this thing.

[57] There's a section in the law 11 -D of the Clean Air Act, never been used before.

[58] You know, it's just been sitting there quietly in the statute for 50 years, and it's not exactly clear, but we could use it to do this.

[59] I see.

[60] And they knew at the time that that was very bold.

[61] The Obama administration knew.

[62] Yeah.

[63] They said, okay, we've got this imperfect old tool, and let's go for it and give it a shot.

[64] Okay, so Obama based this executive action on a law that was old that said nothing about carbon emissions or global warming.

[65] So what happens after he does that?

[66] Well, within 24 hours, he's smacked with a giant lawsuit by all of these Republican attorneys general.

[67] The leader is the attorney general of one of the major coal -producing states in the country, West Virginia.

[68] He's flanked by some of the most powerful attorneys general from other states across the country.

[69] And they say, oh, heck no, you have stretched the intent of this law so far beyond, you know, how it was ever meant to be used.

[70] You've given this agency the authority to remake our entire electricity sector.

[71] have gone way, way too far in this.

[72] Okay, so he slapped with this lawsuit.

[73] What happens to it?

[74] What do the courts do?

[75] So the lawsuit starts moving in 2014, and by 2016, there's a new president in town, and this was a top priority for President Trump.

[76] So he effectively rolled back this regulation, no more clean power plan.

[77] Right.

[78] Okay, so the lawsuit is moot at that point then.

[79] Yes.

[80] At that point, there's nothing to fight over until President Biden campaigns and comes into office on an even more passionate and aggressive climate change platform than Obama.

[81] In his inauguration speech, he said that tackling climate change would be one of the four driving principles of his administration.

[82] You know, he said he wanted to do legislation, but he also wanted to reimpose these Obama -era climate change.

[83] rules, but go further.

[84] And so he made that intent very clear.

[85] However, it's only a year in, and they have not yet actually put any of that regulation back in place.

[86] While they have talked about it and been clear that at the EPA, they are working on formulating such a plan, there's not yet one on the books, but the AGs, the Republican AGs, are continuing with this lawsuit.

[87] West Virginia versus EPA is continuing to make its way through the courts.

[88] And what is super weird about this case.

[89] And I've had sort of like the highest legal experts in the land use that extremely technical term in describing it is that at this moment, it's a case about a regulation that doesn't exist.

[90] Okay, that is very weird.

[91] It's, yes.

[92] But Coral, how does that actually work?

[93] I mean, there's no regulation in place to fight, right?

[94] So how are the court's able to just pick it up if there's no other side?

[95] That is a great question, Sabrina.

[96] It is a question that I don't think we fully have an answer yet to because this, it's so unusual and new.

[97] And it's this very aggressive legal strategy that's about shutting down these regulations preemptively.

[98] Okay, so this is a lawsuit being effectively reanimated by people opposed to the government regulating carbon emissions who are so intent on blocking that regulation that they're preemptively suing to stop something that doesn't even exist yet and taking that theoretical case all the way up to the Supreme Court.

[99] Yes.

[100] And so this case is going to be one of the first times we'll see a major case like this be decided.

[101] We haven't really seen the Supreme Court make a decision like this.

[102] And that is why this is such an important and interesting case with so much impact.

[103] And so we'll see.

[104] We'll come out on the other side of that in the next few days, maybe in the next week.

[105] But, you know, something that's very important to know is there will be profound impacts not just for how and whether the EPA can regulate climate warming pollution or even how and whether the EPA can do environmental rules, this is likely to have a big impact on how the entire federal government can make rules and regulate.

[106] We'll be right back.

[107] Coral, how might this case, this West Virginia versus EPA, also change the way other federal agencies regulate?

[108] I mean, it's not just climate, you said, right?

[109] How would that work?

[110] Right.

[111] So again, you know, the very specific piece of this case is this one regulation, the clean power plan, the EPA, and climate.

[112] But the attorneys general are very clear that it's not just about that.

[113] This is part of a very long, very carefully coordinated, very well -funded campaign on the right to go after something much bigger, not just this one particular regulation, but to go after what a lot of conservative activists call the administrative state.

[114] What is the administrative state?

[115] It's kind of a buzzword that a lot of conservatives and conservative activists and conservative scholars and conservative attorneys have talked about as this kind of bloated executive branch, this idea that there's, you know, thousands and thousands of unelected bureaucrats sitting in federal agencies making regulation after rule that have so much effect on our lives and on the economy.

[116] And that is the broader target of a lot of these cases is to create a new legal precedent that will rein that all in and prune it down.

[117] So, okay, the administrative state and the conservative argument against it, I get that.

[118] But how are they going after this administrative state?

[119] I mean, what are they actually doing?

[120] So there is a really specific legal doctrine that has been in place since the 1980s that conservatives see in many ways as giving rise to the executive branch having so much power.

[121] This legal doctrine stems from a Supreme Court decision called Chevron v. NR