• Jessica Zimmer

How Sackett v. EPA could limit the EPA’s authority on energy

Sackett v. Environmental Protection Agency, a new case regarding wetlands now before the U.S. Supreme Court, could restrict the EPA’s power to regulate power plant emissions. Although Sackett is the only big environmental law case slated for 2022, it has the potential to affect a number of the EPA’s actions beyond the Clean Water Act. One of the most important things to examine about the Court’s decision is whether it will apply the major questions doctrine.



power plant emissions
Credit: catazul/Pixabay

This doctrine, also known as the major rules doctrine, requires that a federal agency which seeks to decide an issue of major national significance must take an action that is supported by clear statutory authorization, i.e. federal law. If the Court gives a narrow reading to West Virginia v. EPA, it should not apply the doctrine. If the Court relies on the majors question doctrine, it will expand the ruling beyond West Virginia.

The latter move would inhibit the EPA’s power to take drastic action regarding climate change. The EPA’s action would have to be authorized by federal law. According to Professor Daniel Farber, faculty director for the Center for Law, Energy, & the Environment at the University of California, Berkeley, it looks as if Congress will not enact any mandates for power plants in the near future.

“State governments can do a lot on their own, as California has shown over the past 20 years. There are now at least a dozen states with ambitious climate policies,” said Farber.

The EPA has other options available.

“(It) might require that coal-fired plants add natural gas, hydrogen, or biomass to their fuel mix. (That) could substantially cut emissions. There's also been talk of mandating partial capture of the CO2 produced by fossil fuel plants. (Further, the) EPA (could) exert pressure on fossil fuel plants by tightening other pollution regulations that apply to those plants for particulate and ozone,” said Farber.

Farber said the EPA’s next proposal regarding energy use is likely to be much different than the Clean Power Plan. The agency withdrew this federal plan in 2019.

“Some states are probably waiting to see what that (proposal) will look like. The Inflation Reduction Act (which President Biden signed in August)...will probably have a big effect on state planning,” said Farber.

Farber added the EPA will have to put together a package of smaller measures rather than being able to rely on a dramatic initiative like the CPP.

“They have a lot of expertise and are likely to continue making progress,” said Farber.

He expressed concern that understaffing continues to limit the agency’s work.

“The EPA has been badly understaffed for years. There are many Trump rollbacks that need to be addressed. New regulatory initiatives on climate change (stretch) staff even further. I think they'll make things work somehow, but the staffing issues definitely don't make things easier,” said Farber.

 

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