Halloween is Over, Watch Out for the Leftover Zombies

An abstract, black and white image depicting an upside down court house and smoke billowing out of two smoke stacks.

The Supreme Court announced just recent­ly that it would hear a case about a dead rule: the Trump-era EPA guide­lines on green­house gas emis­sions from pow­er plants issued under the Clean Air Act’s sec­tion 7411(d). The U.S. Court of Appeals for the D.C. Cir­cuit struck down that reg­u­la­tion one day before Pres­i­dent Biden was inau­gu­rat­ed, hold­ing that the agency’s inter­pre­ta­tion of the statute was too restric­tive. EPA did not seek review of that deci­sion. Four sets of state peti­tion­ers and indus­try groups nonethe­less did file peti­tions ask­ing the Supreme Court to weigh in on the legal­i­ty of the Trump-era rule.

The peti­tions call for sweep­ing pro­nounce­ments from the Supreme Court. West Virginia’s cert peti­tion char­ac­ter­izes sec­tion 111(d) as ancil­lary” to the Clean Air Act and asks whether EPA is con­sti­tu­tion­al­ly autho­rized to issue a rule under the terms of the statute. The North Amer­i­can Coal Corporation’s peti­tion asks whether EPA can base the guide­lines on reduc­tions that com­pa­nies could achieve through trad­ing or invest­ing in renew­able pow­er. North Dako­ta sim­i­lar­ly asks if EPA is autho­rized under the statute to con­sid­er the pos­si­bil­i­ty for reduc­ing emis­sions through gen­er­a­tion-sec­tor-wide” mea­sures to reduce green­house gas emis­sions. And West­more­land Mining’s peti­tion asks whether EPA is autho­rized to decide whether and how to restruc­ture the nation’s ener­gy system.” 

Oth­er states, EPA, and clean ener­gy com­pa­nies are on the oth­er side of the case. Those par­ties have argued that sec­tion 111(d) is not an ancil­lary” extra­ne­ous or sub­or­di­nate pro­vi­sion of the statute, but rather an instruc­tion from Con­gress to restrict dan­ger­ous pol­lu­tants from exist­ing sources under the require­ments set out in the Act. And they argue that the Court will be issu­ing an advi­so­ry opin­ion” by tak­ing a case before the agency has issued its new rule — typ­i­cal­ly a role for Con­gress, not courts. Also, with­out a new rule from EPA, the Court will be deal­ing in hypo­thet­i­cals and the typ­i­cal bound­aries or guide­posts restrict­ing how far the Court goes are missing.

EPA said in its Supreme Court sub­mis­sion that it would not defend the Trump-era rule and was rewrit­ing its reg­u­la­tions for pow­er plants. After the Court grant­ed cer­tio­rari, the agency made clear again (on Twit­ter and in a Reuters inter­view) that it was still work­ing on a rewrite. If EPA final­izes a rule that man­aged to avoid at least some of the parade of hor­ri­bles described in the peti­tions, it could be that the case would lose a lot of its pow­er (pun intend­ed) — though that is not a small task. If not, it will be inter­est­ing to see the Court wad­ing in on whether and how to breathe new life into the Trump-era rule.