Following a landmark ruling limiting the power of the Environmental Protection Agency (EPA), the Supreme Court has been inundated with emergency appeals targeting EPA rules and regulations.
Supreme Court Urgent mattersThe list, which consists of fast-track cases from applicants seeking immediate action, currently has 18 applications, 11 of which relate to the EPA's aggressive power plant regulations finalized in April. The flood of emergency applications seeking immediate relief from landmark EPA rules is a sign of things to come following the June court decision that overturned Chevron's deference. Previously Former EPA officials told the Daily Caller News Foundation that the bill essentially gave the federal agency broad powers to interpret the law itself when there are ambiguities in the statute.
“I think we'll see a lot more of this in a post-Chevron world, especially when agencies try to go beyond Congress' intent or the agency's long-standing regulatory practice,” Andrew Wheeler, who served as EPA administrator under former President Donald Trump, told DCNF. “This power plant rule is about fuel switching, but this provision of the Clean Air Act has not done that thus far. I think we'll see a lot more post-Chevron challenges as we deviate from standard practice.” (Related story: “This is a big deal”: Supreme Court eviscerates administrative state, Biden's climate plan may take biggest hit)
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According to SCOTUSblog, the 17 pending lawsuits against the EPA were filed in the weeks following the court's decision to overturn the Chevron ruling. In addition to 11 lawsuits that directly relate to the EPA's power plant regulations, there are also six lawsuits targeting the EPA's May 7 regulations. action One application, which would establish new national emissions standards for hazardous air pollutants, is not related to the EPA.
According to the EPA, the rule would require existing coal-fired power plants to reduce their emissions by 90% by 2032 if they want to continue operating beyond 2039, and new natural gas-fired power plants would be required to meet similar regulations if they want to operate beyond 2039. Critics Opponents of the EPA's power plant rules have characterized them as, in effect, an attempt to get around the 2022 Supreme Court decision in West Virginia v. EPA, which overturned the Obama EPA's so-called “Clean Power Plan.”
Plaintiffs in the various cases on the Supreme Court's emergency docket (also known as the “shadow docket”) include states such as Oklahoma and North Dakota, and industry players such as Continental Resources and Americas Power. While it is unlikely that the Supreme Court will take up all or even many of these cases, the Court has a chance to seize the opportunity of at least one of the emergency dockets to address one of the most aggressive regulations promulgated during President Joe Biden's term in office.
“To me, this is very exciting because this is an available legal tool that will be very important to counter the current administration’s continued disregard for the clear lines of the law,” Mandy Gunasekara, who served as chief of staff at the Trump EPA, told DCNF about the legal situation in the wake of the Chevron ruling. (RELATED: Officials told Biden administration's EPA its aggressive green power plant plan has serious flaws, documents reveal)
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Gunasekara described the Biden EPA's approach to major regulations as “throwing spaghetti at the wall,” but gave the EPA some credit for being strategic in its efforts to achieve its policy goals. However, the EPA may have miscalculated by rushing to finalize major rules to avoid potential risks. Congressional Review Act Gunasekara and Wheeler said the CRA would likely take action if a second Trump administration and a Republican-controlled Congress were to take office in November.
“They have given the Supreme Court multiple opportunities to address fundamental legal questions about the current administration's regulatory activities,” Gunasekara said of the EPA.
Wheeler agreed that the EPA may have made a blunder by rushing to enact a major rule to meet the CRA deadline, sacrificing the agency's ability to hedge its work against the future after the Chevron ruling.
“I think the Biden administration made a strategic error in trying to push these regulations through before the artificial deadline of the Congressional Review Act,” Wheeler told DCNF. “I said at the time: They should have waited for Roper and incorporated the Supreme Court's decision into their case and strengthened the regulations. They knew Roper was coming and made a conscious decision to try to pass as many of these regulations as possible before the artificial deadline of the Congressional Review Act, and I think they should have waited.”
The EPA did not immediately respond to a request for comment.
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