On Monday, several outlets broke the story that the Biden administration is planning to release a plan to regulate carbon emissions from power plants. And even though the rule isn’t public yet, if history is any indication, conservative forces are already getting ready to take the EPA to court.
Last year, the Supreme Court ruled in favor of several plaintiffs, including two coal companies and a group of Republican attorneys general, in a case challenging the Obama administration’s Clean Power Plan, another landmark policy aimed at regulating emissions from power plants. While the Clean Power Plan never went into effect—it was tied up in court challenges for years after being introduced in 2015 and was repealed by the Trump administration—last year’s court case was hugely important symbolically in determining what kind of regulations the EPA could put on dirty power plants. (While nearly 300 coal-fired power plants have closed since 2010, about 40% of the U.S.’s coal-generating capacity, coal-fired power still constitutes almost 60% of the U.S.’s emissions from electricity generation.)
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The design of this Biden rule treads carefully around the stipulations laid out in last year’s ruling. The court last year took issue with the Clean Power Plan’s mandates for states to design plans to cut emissions—an approach known as “beyond the fenceline,” meaning that it attempted to regulate pollution outside of the actual physical power plants, which the court decided was not in keeping with the original order to the EPA from Congress. Biden’s power plan rule, according to media reports, appears to deal exclusively with reducing emissions at power plants themselves, through the broad application of carbon capture and storage technologies to clean up gas- and coal-fired power plants.
“The two rules are much different,” Michael Gerrard, the founder and director of the Sabin Center for Climate Change Law at Columbia University, told Earther.
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That doesn’t mean that a Biden plan regulating emissions from power plants will be safe from court challenges—far from it. Conservatives are facing a court that was tailor-made to cater to their wishes, formed from years of dark money and behind-the-scenes work from Republican champions with a particular vision of a super-conservative America. This sympathetic court has already delivered big wins, like last year’s EPA ruling and the reversal of Roe v Wade.
Plus, it’s pretty much par for the course for EPA rules to be dragged back and forth to court. “Virtually everything the EPA does is challenged in court,” Gerrard said. “One side or the other sues—sometimes both.”
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A real sticking point that challengers are likely to exploit is what’s known as the major questions doctrine, a statutory principle that the Supreme Court solidified in its ruling last year. The major questions doctrine states that if an agency is going to take an action that has “major” economic or social significance, it needs explicit authorization from Congress. There could be a whole set of ways to interpret this principle—but because the EPA decision was less than a year ago, the Court hasn’t had a lot of time.
“We don’t know how major is major,” Gerrard said. “And we don’t know how explicit the direction of Congress needs to be.” Challengers could argue that points of Biden’s plan—including its reliance on carbon capture and storage technology, which is currently extremely expensive and yields spotty results—lay outside of Congress’s explicit direction to the EPA with regards to regulating power plants.
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The Biden administration will roll out its rule by the end of the week, Politico reported.
“I think it’s very likely that this rule, once it’s filed, will be challenged in court,” Gerrard said. “I think it’s very likely there will be a major questions challenge to it. I’m certainly not going to predict how it’s going to come out.”
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