Mortenson as amicus rebuts attack on EPA power in West Virginia v. EPA

UPDATE

 West Virginia, et al v. EPA

QUESTIONS PRESENTED 1. Whether the Clean Air Act, 42 U.S.C. 7401 et seq., unambiguously excludes generation shifting from the measures that the Environmental Protection Agency (EPA) may consider in determining the “best system of emission reduction,” 42 U.S.C. 7411(a)(1), for purposes of regulating carbon dioxide (CO2) emissions from existing power plants. 2. Whether EPA’s regulation of hazardous air pollutants from coal-fired power plants under 42 U.S.C. 7412 bars regulation of CO2 from those same sources under 42 U.S.C. 7411(d).  

Asked by twenty seven states and a raft of public interest organizations the United States Supreme Court agreed to hear and on February 28 will explore the ability of the Environmental Protection Agency to implement its Affordable Clean Energy Rule which is intended to compel power plants to move away from coal. The case has attracted as litigants states and industry organizations. All such cases today raise the question How will the Court's conservative majority seek to diminish the power of a regulatory agency that is the long-time target of anti-regulatory sentiment?

One of the attackers tools is the so-called non-delegation doctrine.  They have positioned themselves via this theory to strike down regulatory methods unless there has been explicit Congressional authorization.  This non-delegation doctrine is embraced by those who call themselves originalist. 

But University of Michigan law professors Julian Mortenson and Nicholas Bagley have long argued that non-delegation is a fable that conservatives love to tell because it suits their ideological hostility to modern government.  They have in Delegation at the Founding, a recent Columbia Law Review article, demonstrated beyond reasonable argument that this idea was not operative at the founding.  Now Mortenson has filed a friend of the court brief in West Virginia v. EPA. 20-1530. He shows that Congress delegated key functions like where to place the offices, and how to determine the routes and locations of the newly established post offices, one of the most important early undertakings of the newly constituted government.  

 Other functions such as patent rights and how to absorb the states debts from the war of independence were also the subject of Congressional delegation placing substantial discretion in the hands of others with little explicit guidance but broad statement of purpose.

The Supreme Court has agreed to review cases challenging the Environmental Protection Agency's right to regulate power plants.  The cases could be a step to a nightmare of administrative law as the conservative supermajority takes the opportunity to throw a wrench in the spokes of the wheels of the administrative state which they detest and deplore as a tyrannical force.  Ian Millhiser laid out the threat HERE a few months ago. - GWC 1/26/2022

Justices agree to review EPA’s authority to regulate greenhouse gases - SCOTUSblog

by Amy Howe

In a term already defined by abortion and guns, the justices on Friday agreed to hear two more politically divisive disputes, involving the Environmental Protection Agency’s authority to regulate greenhouse gases and the ability of states to defend a Trump-era immigration rule that the Biden administration has declined to defend.

Climate change regulation

The litigation over the EPA’s authority comes to the court in a quartet of environmental cases on appeal from the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit vacated both the Trump administration’s decision to repeal the 2015 Clean Power Plan, which established guidelines for states to limit carbon dioxide emissions from power plants, and the Affordable Clean Energy Rule that the Trump administration issued in its place.

Urging the justices to hear the case, one of the challengers, the North American Coal Corporation, acknowledged that the issue of climate change and how to address it has “enormous importance,” but the company stressed that “[t]hose debates will not be resolved anytime soon.” What the court should resolve, it continued, “as soon as possible is who has the authority to decide those issues on an industry-wide scale — Congress or the EPA.” Unless the justices weigh in, the company warned, “these crucial decisions will be made by unelected agency officials without statutory authority, as opposed to our elected legislators.”

The Biden administration told the justices that there was no need for them to step in now, because the Clean Power Plan “is no longer in effect and EPA does not intend to resurrect it.” Instead, the government explained, it intends to issue a new rule that takes recent changes in the electricity sector into account. “Any further judicial clarification of the scope of EPA’s authority,” the government suggested, “would more appropriately occur” after the agency has actually issued the new rule.

After considering the cases at four consecutive conferences, the justices granted review and ordered the cases to be argued together. The justices’ decision in the case, which is expected by summer 2022, could have an impact well beyond environmental law because it could impose new limits on Congress’ ability to delegate authority to all regulatory agencies.

The lead case is West Virginia v. EPA. It is consolidated with North American Coal Corp. v. EPA, Westmoreland Mining Holdings v. EPA, and North Dakota v. EPA.

- GWC