The Supreme Court Case That Could Upend Efforts to Protect the Environment

"The potential ramifications of West Virginia v. Environmental Protection Agency are profound."

"Next month, the Supreme Court will hear oral arguments in a case involving an Obama-era power-plant rule that’s no longer in effect, and never really was. The Court has agreed to hear so many high-profile cases this term, on subjects ranging from abortion to gun rights to vaccine mandates, that this one—West Virginia v. Environmental Protection Agency—has received relatively little attention beyond legal circles. But its potential ramifications are profound. At a minimum, the Court’s ruling on the case is likely to make it difficult for the Biden Administration to curtail greenhouse-gas emissions. The ruling could also go much further and hobble the Administration’s efforts to protect the environment and public health.

West Virginia v. E.P.A. “could well become one of the most significant environmental law cases of all time,” Jonathan H. Adler, a law professor at Case Western Reserve University and a prominent conservative commentator, wrote on the legal blog the Volokh Conspiracy. Or, as Ian Millhiser put it, for Vox, “West Virginia is a monster of a case.”

The case has a long and tangled history. Back in 2015, the Obama Administration issued what was called the Clean Power Plan, aimed at reducing CO2 emissions from power plants. The plan relied on the Clean Air Act, which instructs the E.P.A. to determine the “best system of emission reduction” for a given pollutant. The E.P.A. decided that, in the case of CO2, the “best system” involved not just upgrading the equipment at individual power plants but changing the way power is generated: to meet the regulations, some coal plants would have had to close or switch to burning lower-emitting natural gas. Before the plan could be implemented, the Supreme Court, in response to a lawsuit brought by more than two-dozen Republican-led states, issued a stay. The 5–4 vote was announced just days before Justice Antonin Scalia died. It was the first time that the Court had blocked a regulation before it had been reviewed by a federal appeals court."

Elizabeth Kolbert reports for the New Yorker January 10, 2022.

Source: New Yorker, 01/14/2022