SCOTUS ruling ‘takes away EPA’s flexibility’ for regulating emissions: Law professor
Georgetown Law Professor William W. Buzbee joins Yahoo Finance Live to discuss the SCOTUS EPA ruling and how it impacts federal agencies' ability to regulate greenhouse gas emissions.
Video Transcript
AKIKO FUJITA: Well, a huge blow to climate action this morning with the Supreme Court issuing a 6-3 ruling here, in the case West Virginia versus the Environmental Protection Agency. This came down just moments ago, saying Congress is the one that has the authority to regulate power plant emissions, not the EPA. And that ruling now casts doubt on whether the Biden administration will be able to push forward with its climate goals.
Joining us now to discuss the decision's impact on climate action is William Buzbee, the faculty director of Georgetown Law's Environmental Law and Policy Program. And professor, it's good to talk to you today. Just give me your first take here on what the implications are for climate policy, especially for this administration.
WILLIAM BUZBEE: Sure, happy to do so. So the first take is on the particular action that the Obama administration had taken, which was regulating power plants based on what the best plants were doing connected to the grid. The Supreme Court resoundingly said they couldn't regulate in this way. And so that particular strategy, which relied on, effectively, what were trading strategies was found to be beyond the power Congress authorized EPA to use.
On the other hand, very importantly, is, the court did not question EPA's power generally to regulate climate change. There were some arguments made by people filing to the court that EPA should not have this power at all. And the court did not do that. And so EPA's power under other provisions remains intact.
AKIKO FUJITA: Even with that said, obviously, regulating emissions at existing power plants certainly key to tackling the climate issue here. How does the Biden administration now respond? If it is about Congress granting explicit authority in this way, I mean, the expectation has to be that that certainly is not going to happen anytime soon, correct?
WILLIAM BUZBEE: It's a little bit. So the court doesn't question. It reaffirms that EPA has power to regulate, under this provision 111(d), existing power plants. It really had to do with what can they do with this language, which says they have to set levels based on the best system of emission reduction. That's the statutory term. And so the court there questions EPA acting in a sort of cutting edge novel sort of way. And so, it takes away EPA's flexibility. And generally, EPA is going to have to look at the best thing the plants are doing on their site.
But with technological progress, that remains possible. That is, if people get clean coal strategies-- carbon sequestration where they perhaps pull carbon from the air and store it, if that becomes viable at sites, they might be able to regulate that way.
BRIAN CHEUNG: Professor, it's Brian Cheung here. I wanted to ask about just the Chevron deference here, basically, the agency power in interpreting laws from Congress because, essentially, that's what we're talking about here, was the EPA's interpretation of what Congress wanted it to do on some of these clean power initiatives. Do you think that beyond the decision today, that this changes the interpretation among maybe beyond the EPA, other agencies in terms of, here is the wiggle room that we have to try to police things that Congress has told us to police.
WILLIAM BUZBEE: Sure. Yes, so very good. Good legal. So, yes. So the Chevron case is a big case that, for decades, has said agencies have interpretive discretion interpreting statutes, that they're kind of more expert than courts. So the court doesn't actually frontally direct or address this question of Chevron deference.
As it has done in recent cases, it just doesn't mention it. What it does do is it strengthens this thing called the major questions doctrine, which, effectively, makes it harder for agencies to do new things, address new risks in new ways under old statutes. And so it strengthens kind of the courts as arbiters of what the power is. So, indirectly, it strengthens the courts. But it doesn't directly get rid of Chevron deference.
AKIKO FUJITA: I mean, it sounds like you see this as more of a narrow ruling when you consider the expectations going into this. But some would argue, is this really just the beginning? We have seen the fossil fuels industry, the states where the fossil fuels industry has certainly been a big economic driver, try to weaken the hand of federal agencies for years in terms of their ability to craft environmental law.
WILLIAM BUZBEE: Sure.
AKIKO FUJITA: Do you see this as just the first step?
WILLIAM BUZBEE: The answer is part way, OK? So certainly, the whole way the court talks about the need for clear authorization of regulatory action is a judge empowering barrier to agencies acting in a protective way. On the other hand, the court really closely analyzes this particular statute, this particular provision for what the EPA-- what EPA did. And so it does not, in a major big way, kind of say, overall, agencies lack power. It will be sort of case by case, provision by provision.
But I say, since you're focused here with all of your questions and coverage on business, two important things that I think people will be looking at. The court does not take away polluters and states' ability to be flexible in how they comply with the law. Some people had some coal interests. And coal states had hoped the court would preclude flexible cost effective compliance strategies, because those tend to hurt things like coal plants. And the court does not do that. So that's important there.
And so I'll just say that. And then the second is, there are a lot of businesses that have been investing in clean energy, both clean energy technologies, business strategies. And those businesses are hurt by this decision. That is, it doesn't wipe them out, certainly not. But it does reduce the likelihood that the federal government will be pushing things in a protective direction.
BRIAN CHEUNG: Yeah, wide ranging implications from this for sure. Georgetown Law Professor William Buzbee, thanks so much for breaking it down for us.
