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July 28 — The outcome of the presidential election could determine whether the U.S. Supreme Court will revisit two pivotal Clean Air Act cases that deal with power plant regulations for greenhouse gases and air toxics, an attorney said during an American Bar Association webinar July 28.
The Clean Power Plan (RIN:2060-AR33), which limits carbon dioxide emissions from the power sector, is currently stayed by the U.S. Supreme Court while the U.S. Court of Appeals for the District of Columbia Circuit reviews the rule's legality ( West Virginia v. EPA, D.C. Cir., No. 15-1363, 7/27/16 ).
The “loser” of the challenge before the D.C. Circuit will have to decide whether to seek certiorari from the Supreme Court because “it will depend on who the presidential nominee is to the Supreme Court to replace Justice [Antonin] Scalia's seat,” said Richard Ayres of Ayres Law Group LLP.
“Come January or so, when the D.C. Circuit issues its opinion, you are likely to see a lot of agonizing whether to go higher,” he said.
Likewise, Ayres said the U.S. Supreme Court may revisit its 2015 decision that remanded the mercury and air toxics standards, also known as the MATS rule, back to the agency for a new cost-benefit analysis, a decision seen as limiting the deference the Environmental Protection Agency customarily receives from courts. The court decided against deferring to the EPA's interpretation of the Clean Air Act's language as not requiring cost-benefit analysis of power plant regulations for hazardous air pollutants.
Ayres said that is because the late Justice Scalia had led the fight against what he saw as undue deference to the EPA established under the Supreme Court's own 1984 ruling in Chevron U.S.A. v. NRDC (467 U.S. 837, 21 ERC 1049 (U.S. 1984)).
Under the Chevron doctrine, courts can defer to the interpretation of expert federal agencies such as the EPA when the meaning of a statute is ambiguous.
“Justice Scalia's death leaves no one to lead the movement to roll back Chevron,” Ayres said, adding, “The fate of the Chevron case seems to hinge upon presidential action that will decide who will have Justice Scalia's seat.”
Beyond the reopening of the Chevron case, Ayres said there is little significance to the Supreme Court ruling in Michigan v. EPA (135 S.Ct. 2699, 2015 BL 207163, 80 ERC 1577 (U.S. 2015)).
He said the ruling only applied to regulation of air toxics emitted by power plants and doesn't apply to any other industries. He said the MATS rule remains in place. Besides, he said, the Michigan ruling can't be read as an endorsement for requiring the agency to conduct a cost-benefit analysis for power plant regulations.
On the other hand, Ayres said the stay issued by the Supreme Court on the Clean Power Plan has greater significance from a practical standpoint because of its impact on states.
“Some states have stopped preparing for the Clean Power Plan,” Ayres said, adding, “States should be drafting plans for compliance, and many still are, but a lot of them are ignoring it and not doing anything.”
The EPA in the Clean Power Plan left it up to states to decide how they would limit greenhouse gas regulations, whether through emissions trading, energy efficiency measures and/or controls on power plants.
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