Supreme Court Case Looms Over Biden Energy Agenda

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Policy watchers are anticipating a forthcoming Supreme Court ruling, likely this week, that could potentially hamstring much of the Biden administration’s regulatory agenda for energy policy.

The US Supreme Court is weighing a case centered around the scope of the federal government’s authority to write greenhouse gas (GHG) regulations that could reshape the power sector. That in and of itself carries broad implications for energy regulations, but the court heard the case under a fairly nascent doctrine concerning whether legal questions involving “major” political and economic outcomes can be addressed by federal agencies or must be put to Congress.

That case, West Virginia v. Environmental Protection Agency (EPA), could potentially make it more difficult for the administration to regulate emissions from the energy sector as well as reshape the contours of the administrative state.

Only four cases from the Supreme Court’s current term remain undecided as of Monday afternoon, with the remaining spate of opinions slated for release on Wednesday. Legal experts still expect a ruling in West Virginia v. EPA this week, given that the court is soon scheduled to break for the three-month summer recess before the new term begins on Sep. 28.

There is a very slim possibility of a wild card scenario, in which the court majority decides to use the case as a vehicle to reverse Massachusetts v. EPA, the landmark 2007 Supreme Court ruling that determined the EPA has authority to regulate GHGs. In that scenario, the court would hold off ruling on the West Virginia case until the fall for fresh briefings, but that is seen as unlikely.

Precedent for Change

Some court watchers viewed last week’s 6-3 ruling in Dobbs v. Jackson Women’s Health Organization, in which the court’s conservative majority overturned the 1973 decision that established abortion as a constitutional right on a 6-3 vote.

That ruling “shows that a radically conservative five-Justice majority is willing to upend long-established precedents,” which does not “bode well” for the Biden administration in the West Virginia case, given that some of the court’s majority are vocal EPA critics, said Robert Percival, a law professor at the University of Maryland's Francis King Carey School of Law.

The West Virginia suit involves the extent to which the EPA can reach beyond individual power plants to set wider grid-level policy in curbing carbon emissions from the power sector. But the legal questions behind the suit look to tackle whether Congress has the ability to give the EPA the type of authority it has used in crafting power sector regulations, which could be disastrous for pending and future climate rules.

Policy and Regulation, CO2 Emissions
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