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By Pamela King | 05/15/2024 01:31 PM EDT
Has the president done enough to shield his rules from a conservative-dominated Supreme Court? “Only time will tell,” a former Department of Justice environment attorney says.
The Supreme Court. Francis Chung/E&E News
For weeks, the Biden administration has been churning out environmental rules in an effort to escape congressional veto if Republicans take the Senate and White House in November.
But even if President Joe Biden wins a second term and Congress remains in Democratic control, his rules are still at risk of being overturned by a judiciary that is increasingly skeptical of the power of federal agencies.
“Only time will tell if they’ve done enough to protect the new environmental rules, but I do believe the Biden administration is heeding the Supreme Court’s warning from West Virginia v. EPA,” said Jonathan Brightbill, a partner at Winston & Strawn.
Brightbill, a high-ranking attorney in the Justice Department’s environment division during the Trump years, referenced the court’s 2022 ruling that invalidated Obama-era regulations for climate pollution from power plants — and advanced the “major questions” doctrine barring agencies from handing down costly and politically controversial rules without explicit permission from Congress.
Among the rules the Biden administration has released in recent weeks is a new regulation to control carbon pollution from the power sector. This time, EPA steered away from an approach that would force the the utility industry to transition from fossil fuels to renewable energy and instead stuck to tackling greenhouse gases from individual facilities.
Agencies under Biden have taken note of West Virginia and are being careful about how they wield their power in other rules on issues like infrastructure permitting and chemical contamination, Brightbill said.
“You are definitely seeing somewhat dialed-back versions of many of the rules that are slated to go final, as compared to the proposals,” he said. “Not all of them, but if you look across the range, you see a greater sensitivity to litigation risk.”
As Biden’s new rules hit the Federal Register, they will be subject to lawsuits from Republican-led states and industry groups.
“It’s not a new playbook for industry and polluters to challenge every standard that comes out,” said Jill Tauber, vice president of climate and energy litigation at Earthjustice. “What we might be seeing that’s new is that approach getting more aggressive in light of the anti-regulatory agenda coming out of the Supreme Court.”
Here are the legal claims that could take down some of the Biden administration’s latest environmental rules:
The administration’s bid to fast-track permitting for renewable energy projects is already facing opposition from foes who say the rule is a prime example of government overreach.
Unveiled in late April, the White House Council on Environmental Quality’s “Phase 2” National Environmental Policy Act reforms would accelerate approvals for clean energy infrastructure like electric vehicle charging stations while maintaining protections for communities overburdened by pollution.
Under NEPA, agencies must analyze the environmental impacts of approving projects like pipelines and highways.
In comments on the proposed rule last fall, Republican-led states took a page from West Virginia to argue that CEQ’s NEPA implementing rule unlawfully favors renewables over fossil fuels.
If the Clean Air Act did not empower EPA to shift the electric grid away from coal-fired power, the states wrote, “then NEPA certainly does not give CEQ that authority to reshape energy development through other means.”
While Brightbill, the former DOJ official, said some parts of the rule appear “discordant” with direction from Congress, he said it can be tough for opponents to establish standing, or the power to sue, over NEPA regulations. He said he expects the biggest legal battles to play out over how the rule is applied to energy and infrastructure projects.
Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center, said he expects the CEQ rule to survive those challenges.
“Is there litigation risk with this Supreme Court? You cannot take that off the table because this Supreme Court has proven more than willing to reach the result it wants to, regardless of what established law really says,” he said. “Yes, there’s risk, but at the same time, as much as possible, this rule does seem well-grounded in the federal government’s legal authority.”
The fate of legal challenges against EPA’s new rules governing “forever chemicals” in drinking water may rest in part on the outcome of a blockbuster Supreme Court battle this term.
In two cases to be decided by June, the justices are expected to scale back the longstanding but now infrequently invoked Chevron doctrine, which for 40 years has created legal leeway for agencies like EPA when federal statutes — such as the Safe Drinking Water Act — are unclear.
In years past, Chevron would have been a powerful tool to convince judges to defer to the expertise of EPA on a highly technical rule that sets limits for PFAS in drinking water, said Emily Lamond, an attorney at the law firm Cole Schotz.
“It would be a textbook example of where a court would defer to the technocrats under the Chevron doctrine,” she said, “but that is absolutely a question mark.”
EPA is likely to face lawsuits that question the agency’s threshold for PFAS contamination, which industry could argue is too costly to achieve compliance. Opponents may also bristle against setting such strict limits on the chemicals — which are linked to serious health risks like cancer and kidney disease — in drinking water when there are other pathways to exposure.
PFAS — a set of thousands of human-made chemicals valued for their moisture-resistant properties — can be found in cooking pans, shampoo and a wide range of other products.
“As with any new rule,” said Gage Zobell, a partner at Dorsey & Whitney, “we are expecting litigation and lawsuits to follow as those individuals harmed by PFAS compounds argue the new rule is insufficient and those bearing the costs of upgrading treatment facilities worry the price of PFAS-free water is too much.”
In addition to EPA’s new power plant rule, the Biden team has recently issued several regulations to clean up other sources of planet-warming emissions.
Legal battles are already brewing over one such rule that targets the nation’s leading source of climate pollution, the transportation sector.
As with the NEPA rule, red states are arguing that EPA’s tailpipe rule, the strongest-ever crackdown on vehicle emissions, is a gambit to transition the automotive market away from gasoline-powered engines and toward electric vehicles, in violation of the major questions doctrine.
“This rule is legally flawed and unrealistic, to say the least,” said West Virginia Attorney General Patrick Morrisey (R) when the states filed their lawsuit against EPA.
Brightbill said the Biden administration appears to have crafted the tailpipe regulation and other rules with major questions challenges in mind. While EPA and other agencies may have preferred more expansive regulations, they must offer rules that have a chance of going into effect.
“In a world in which there is no major questions doctrine, it isn’t clear to me that the attitude wouldn’t have been more cavalier of taking the risk with the courts,” he said. “One significant problem with pursuing an overly aggressive legal theory is you could end up with nothing over the short and medium term.”
While monument designations are not done through regulation, the Supreme Court has recently expressed interest in rethinking the mechanism for presidents to cordon off public lands.
If the justices eventually decide to scale back the president’s powers under the Antiquities Act, that could pose a threat to Biden’s recent proclamations to expand national monuments in California and set aside federal lands in Arizona.
“It’s a different page of the same playbook,” said Raúl GarcÍa, vice president of policy and legislation at Earthjustice.
Chief Justice John Roberts wrote in 2021 that the Antiquities Act “has been transformed into a power with no discernible limit,” appearing to invite challenges to the law.
The court earlier this year declined to take up an Antiquities Act case, but conservative lawyers said there are plenty of other monument fights the justices could use to upend the 118-year-old law.
If they do revamp the president’s power to create monuments, GarcÍa said, the high court will have some explaining to do.
“Even when the Supreme Court wants to insert itself into fights it shouldn’t,” he said, “it still has the burden to prove to the American public that that’s actually warranted.”
Reporter Niina H. Farah contributed.
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