The Daily - The Supreme Court Case That Could Doom U.S. Climate Goals

Episode Date: June 23, 2022

While coming rulings on abortion and guns have garnered lots of attention, the Supreme Court is also set to make another major decision in a less-publicized suit involving climate change.The case, about how far the Environmental Protection Agency can regulate greenhouse gas emissions from power plants, could affect the way the entire government makes rules and regulations.Guest: Coral Davenport, a correspondent covering energy and environmental policy for The New York Times.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: Republican attorneys general and conservative allies have waged a multiyear campaign to tilt courts against climate action.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi. This is The Daily. As the Supreme Court term comes to a close, it's expected to rule on two landmark cases involving abortion and guns. But it will also decide another major case, one that is getting far less attention. Today, my colleague Coral Davenport on a case involving climate change

that could take away much of the federal government's power to regulate. It's Thursday, June 23rd. So Coral, tell me about the Supreme Court case you've been following. So this case is called West Virginia v. EPA. It is certainly the largest and most important climate change case to come before the Supreme Court in over a decade. Fundamentally, the case is about a group of Republican attorneys general, mostly from fossil fuel producing states, West Virginia, Kentucky, Texas, who are suing the federal government over its authority to regulate greenhouse gases from power plants. And even though it's in front of the Supreme Court now, it actually goes back to the Obama administration, back to 2014. You know, Obama was the first president who said, I am going to prioritize dealing with climate change. He tried to pass a major climate change law

through the Congress. Of course, that famously failed. And after that happened and after Democrats lost control of the Congress. I'm going to be working with Congress where I can to accomplish this. Obama said. But I'm also going to act on my own

if Congress is deadlocked. I've got a phone and a pen, and I'm going to start doing these things myself. I've got a pen to take executive actions where Congress won't, and I've got a telephone to rally folks around the country on this mission. He was referring to executive action and executive authority on many fronts, but climate change was really the biggest way in which we saw Obama try to assert that power of Penn. And what he did was... Right now, our power plants are the source

of about a third of America's carbon pollution. He went to the EPA... But there have never been federal limits on the amount of carbon that power plants can dump into the air. Think about that. And he directed them to do this massive, sweeping, very unusual regulation. And today we're here to announce America's Clean Power Plan. That was effectively designed to shut down these coal and gas fired power plans.

A plan two years in the making and the single most important step America has ever taken in the fight against global climate change. And kind of totally transform the electricity sector of the U.S., sort of how we turn on the lights in America. So, Coral, he couldn't do this through Congress, right? He tried and he failed. So he did it himself. And I think people are largely familiar with this idea of executive action. You know, Obama was famous for them, right? But what exactly was this executive action based on legally? I mean, how did he have that authority?

action based on legally? I mean, how did he have that authority? So in order to do this, Obama relied on a very old and powerful tool, the 1970 Clean Air Act. Clean Air Act is known as the most powerful environmental law in the world. Each of us all across this great land has a stake in maintaining and improving environmental quality. It was signed into law in 1970 by Richard Nixon. The time has come for man to make his peace with nature. And it was designed to fundamentally give this brand new agency, the Environmental Protection Agency, a lot of authority to clean up the nation's air and water. These problems will not stand still for politics or for partisanship. They demand to be met now. One of the things that makes the Clean Air Act very, very powerful is that it's authors understood in the 1970s, there's probably going to be a lot of environmental problems of the future,

pollutants that are out there that we don't even know about. And we want to make sure that this agency, that the executive branch can go after this stuff that we don't even know about. So we want to make this broad and we want to give them a lot of authority. So it doesn't say, hey, EPA, you explicitly have the authority to, you know, regulate carbon dioxide pollution from coal-fired power plants to deal with global warming. You know, they didn't really know that that was an issue then. They were imagining a future that had not yet happened. Exactly.

And so there are a lot of pieces in the Clean Air Act that are not specific, that are sort of broad and vague and that haven't really been used before. And so when Obama, you know, realized, okay, I can't do a new climate change law, they sat down, they said, all right, we've got this thing. There's a section in the law, 111D of the Clean Air Act, never been used before. You know, it's just been sitting there quietly in the statute for 50 years. And it's not exactly clear, but we could use it to do this. I see. And they knew at the time that that was very bold.

The Obama administration knew. Yeah. They said, OK, we've got this imperfect old tool and let's go for it and give it a shot. OK, so Obama based this executive action on a law that was old, that said nothing about carbon emissions or global warming. So what happens after he does that? Well, within 24 hours, he's smacked with a giant lawsuit by all of these Republican attorneys general. The leader is the attorney general of one of the major coal-producing states in the country, West Virginia. He's flanked by some of the most powerful attorneys general from other states across the country.

And they say, oh, heck no. You have stretched the intent of this law so far beyond, you know, how it was ever meant to be used. You've given this agency the authority to remake our entire electricity sector. You have gone way, way too far in this. Okay, so he slapped with this lawsuit. What happens to it? What do the courts do? So the lawsuit starts moving in 2014. And by 2016, there's a new president in town. And this was a top priority for President Trump. So he effectively rolled back this regulation. No more Clean Power Plan.

Right. OK, so the lawsuit is moot at that point then. Yes. and comes into office on an even more passionate and aggressive climate change platform than Obama. In his inauguration speech, he said that tackling climate change would be one of the four driving principles of his administration. You know, he said he wanted to do legislation, but he also wanted to reimpose these Obama-era climate change rules, but go further. And so he made that intent very clear. However, it's only a year in, and they have not yet actually put any of that regulation back in place.

While they have talked about it and been clear that at the EPA they are working on formulating such a plan, there's not yet one on the books, but the AGs, the Republican AGs, are continuing with this lawsuit. West Virginia versus had sort of like the highest legal experts in the land use that extremely technical term in describing it, is that at this moment, it's a case about a regulation that doesn't exist. Okay, that is very weird. It's, yes. But Coral, how does that actually work? I mean, there's no regulation in place to fight, right? So how are the courts able to just pick it up if there's no other side? That is a great question, Sabrina. It is a question that I don't think we fully have an answer yet to because it's so unusual and new. And it's this very aggressive legal strategy that's about

shutting down these regulations preemptively. Okay, so this is a lawsuit being effectively reanimated by people opposed to the government regulating carbon emissions, who are so intent on blocking that regulation that they're preemptively suing to stop something that doesn't even exist yet, and taking that theoretical case all the way up to the Supreme Court. Yes. And so this case is going to be one of the first times we'll see a major case like this be decided. We haven't really seen the Supreme Court make a decision like this be decided. We haven't really seen the Supreme Court make a decision like this. And that is why this is such an important and interesting case with so much impact. And so

we'll see. We'll come out on the other side of that in the next few days, maybe in the next week. But, you know, something that's very important to know is there will be profound impacts, not just for how and whether the EPA can regulate climate warming pollution, or even how and whether the EPA can do environmental rules. This is likely to have a big impact on how the entire federal government can make rules and regulate. We'll be right back. Coral, how might this case, this West Virginia versus EPA, also change the way other federal agencies regulate? I mean, it's not just climate, you said, right?

How would that work? Right. How would that work? Right. So again, you know, the very specific piece of this case is this one regulation, the Clean Power Plan, the EPA, and climate. But the attorneys general are very clear that it's not just about that. This is part of a very long, very carefully coordinated, very well-funded campaign on the right to go after something much bigger, not just this one particular regulation, but to go after what a lot of

conservative activists call the administrative state. What is the administrative state? It's kind of a buzzword that a lot of conservatives and conservative activists and conservative legal scholars and conservative attorneys have talked about as this kind of bloated executive branch, this idea that there's, you know, thousands and thousands of unelected bureaucrats sitting in federal agencies making regulation after rule that have so much effect on our lives and on the economy. And that is the broader target of a lot of these cases is to create a new legal precedent that will rein that all in and prune it down. So, okay, the administrative state and the conservative argument against it, I get that.

But how are they going after this administrative state? I mean, what are they actually doing? So there is a really specific legal doctrine that has been in place since the 1980s that conservatives see in many ways as giving rise to the executive branch having so much power. This legal doctrine stems from a Supreme Court decision called Chevron versus NRDC, and it led to what is known as Chevron deference. So what does that mean? Yes, what does that mean? What does that mean? So in that case, it found that when a law is not clear or not specific on how to do rules and regulations, then the federal agencies get deference. They get to interpret it. They get the authority. So, you know, in the case of this Clean Power Plan that we've been talking about, the Obama administration kind of leaned on the existence of the Chevron deference and said,

okay, you have this old 1970 Clean Air Act, doesn't talk about any of these things, but this Chevron doctrine means the EPA has deference. They can take the broad outlines of what's there and they can fill it in. They can use their, you know, science and expertise and economic expertise, and they can make a whole new regulation. They have the deference. Interesting. So the name would suggest that the deference is to Chevron, but you're saying that the deference actually goes to federal agencies. Yes. Got it.

But what does it actually mean to have deference here? Got it. But what does it actually mean to have deference here? So this is something that's used kind of across the federal government, but especially really, you know, in the EPA. There are examples of laws on clean air, laws on clean water, where, you know, you see the broad strokes sort of laying out, well, you know, we want you to regulate this pollutant. We want you to take care of this problem, but we haven't really filled in the steps of how you're supposed to do it. And so through the decades, you know, the EPA has used the Clean Air Act to do all kinds of very powerful regulations on things like acid rain, on mercury, all kinds of health regulations. rain, on mercury, all kinds of health regulations. It can be used in the case of financial regulations. If you have, you know, laws about financial regulation that aren't specific on what the regulators should do, like the SEC, the people over in that building get to figure it out and

make those rules, make the rules of the road that affect so many industries, so much of our economy, so much of how we live. That is sort of Chevron deference at work. Okay, so that sounds like it puts a lot of power in the hands of those executive branch agencies. I mean, under the president as opposed to the courts or Congress. Well, and that's exactly the argument of the attorneys general in this West Virginia case. And, you know, it's interesting what the lead attorney general in the case said. This case is not about climate change. You know, if the government wants to address climate change, Congress can do that. He says this case is about, you know, the idea that if these laws don't say exactly what you get to do, then these agencies should not have that authority to do that.

But the case that they're making, if they are successful, could then immediately be applied to all kinds of other federal agencies that make decisions about huge sectors of the economy. that make decisions about huge sectors of the economy. FDA, OSHA, Health and Human Services, certainly the agencies that regulate the financial sector. I mean, the broad goal of this is to shut down this one particular regulation, but use this as a wrecking ball

to kind of take a first thwack at this idea of the Chevron deference. Okay, but the top line of that argument, that power should go back into the hands of elected officials, I feel like a lot of Americans might think to themselves, that kind of makes sense, right?

I mean, after all, it would be going back to the people that they elected. I mean, it's kind of, you know, more democratic in a way. Absolutely. The thing about it is, it's like that top line is absolutely right.

Like you have three branches of government. It should be balanced. We have these huge, sweeping, complicated issues on which again and again, Congress is simply not passing those laws. Right. Congress is, of course, gridlocked and doesn't regulate carbon emissions.

Maybe this is the point for the Republican AGs behind this case, right? That perhaps that's preferable to them since they don't like the regulations and what they're trying to do. That is the outcome they want. And, you know, the Republican AGs, I've talked to some of them about this and they've given a lot of public statements about it. Some of them, there are, you know, AGs who are on this case who are very open about questioning the basic science that carbon dioxide is contributing to global warming. There are others who are not going to go that far, but who will say any kind of regulation on fossil fuel devastates my home state's economy. So my objective is no regulation for that reason. And then, you know, I think that the leaders of this

group, when making their public arguments before the Supreme Court, are framing it in this much higher way of, well, this is about, you know, redistributing an unequal balance in the branches of government. Coral, do you think this legal approach by conservative AGs will work? I think that there is a very good shot because, you know, it's not new. All of the pieces of this strategy have been slowly being put in place for, I mean, going back really to the Obama administration, but also very much during the Trump administration, the judges that were selected to be on the Supreme Court by the Trump administration, not just on the Supreme Court, but all the way down through the federal judiciary. In many cases, they wanted judges who had some kind of record of being opposed to the administrative state, being opposed to Chevron deference. So, for example, Neil Gorsuch, who, of course, will be ruling on this case, famously wrote in a dissent that the Chevron deference allowed executive bureaucracies to

swallow huge amounts of core judicial and legislative power. So, you know, the judiciary is now filled with judges who are very philosophically inclined to be receptive to such cases. And this is one reason why we think that this case was taken up by the Supreme Court, you know, because you have this conservative supermajority, but specifically some of these judges who already really have a record of strongly supporting this core argument. So this is the end goal of a decades-long legal movement. Yes, yes. So all these pieces are coming together, and there's a very good chance that this concept of Chevron deference will be truly hollowed out. So if the court rules, as you're saying, we think it probably will,

and finds against the EPA, it will fundamentally change the nature of what the federal government is and what it does, right? I mean, that's about as big as it gets in terms of a Supreme Court case. There is a very strong likelihood. And again, I think we'll start to see a lot of other cases come forward that are also about restricting regulations. And with that precedent in place, we'll start to see a lot of other decisions that sort of lock down the agency's authorities one by one by one until you get this new landscape where in so many cases the agencies are, their hands are tied. So Coral, I want to go back to where we started this conversation, which is climate. You know, I want to go back to where we started this conversation, which is climate. You know, the ability of the executive branch in the EPA to tackle emissions and climate regulations.

So my question is, if this case works for these conservative AGs, what's the effect of that? I mean, what will that mean for U.S. climate policy? I mean, what will that mean for U.S. climate policy? Well, there's a very specific repercussion, which is that President Biden probably will not be able to meet his targets for lowering greenhouse gas emissions by 2030. He made a very specific pledge to the rest of the world. He said that the U.S. would cut its greenhouse gas emissions in half by 2030. There's three basic tools that he needs to meet that pledge. One of them is this reconciliation bill that is in Congress. It's been stuck there since last year. The other two pieces are this regulation on power plants. And then there's a third piece, which is a big sweeping regulation on vehicles, a rule that would effectively shut down gasoline

powered cars and replace them with electric vehicles. But if any one of those three pieces are taken off the table, then you start to get to a place where it becomes mathematically impossible for the U.S. to meet its climate goals. So if the Supreme Court decides in the way that we think it's going to, you get to that place where Biden will not be able to keep his promise to cut emissions. It doesn't seem like it would be possible. to cut emissions. It doesn't seem like it would be possible. So we've been, you know, putting that line about how it's increasingly likely that it will be mathematically impossible for the U.S. to meet its target. We've started to put that line in a lot of stories, usually like 10 or 12 paragraphs down. But it's starting to, you know, especially if the Supreme Court makes the

decision we think it's going to make, we're starting to think, well, we might need to do a story where, you know, later this year, we'll start to see that, you know, it really is mathematically impossible to reach that goal. And that that's the story itself. And that that's the story itself. Coral, thank you. Thank you, Sabrina. we'll be right back Here's what else you need to know today. On Wednesday, President Biden called on Congress to temporarily suspend the federal gas tax. By suspending the 18-cent gas tax, federal gas tax, for the next 90 days, we can bring down the price of gas and give families just a little bit of relief. In a speech from the White House, Biden urged lawmakers to lift the 18-cents-a-gallon tax through the end of September and called on companies to pass the savings along to consumers.

But the proposal immediately ran into resistance in Congress. Senior Democrats in the House questioned whether they'd have the votes to pass it. This ineffective stunt will join President Biden's other ineffective stunt on gas prices. And Senator Mitch McConnell of Kentucky dismissed Biden's call, effectively dooming the plan in an evenly divided Senate. And the top police officer of the school district in Uvalde, Texas, was placed on administrative leave after the state faulted him for delaying the confrontation with a gunman at Robb Elementary School last month. Chief Pete Arredondo was among the first officers to arrive at the shooting on May 24th.

He was also in charge of the response, which the director of Texas' state police called a, quote, abject failure. Finally, an earthquake in Afghanistan has left more than 1,000 people dead and another 1,600 injured. another 1,600 injured. The 5.9 magnitude quake in the southeastern province of Host was the deadliest in two decades and brought fresh troubles to a country that has been grappling with a dire humanitarian crisis and a collapsing economy since the Taliban took control in August. Today's episode was produced by Michael Simon Johnson, Carlos Prieto, Thank you. by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.