Below is an excerpt of an article co-authored with Jon Schaefer and published in Industry Week on July 8, 2022. Jon focuses his practice on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.
Last week, the U.S. Supreme Court issued its decision that the Environmental Protection Agency exceeded its authority under the Clean Air Act in its attempt to regulate greenhouse gas emissions from power plants.
While the immediate impact of the decision in West Virginia v. Environmental Protection Agency is fairly limited, the court’s rationale has the potential to impact federal agency authority across a broad range of sectors.
The West Virginia case involved a challenge to the Obama administration’s Clean Power Plan and its successor, the Affordable Clean Energy rule. Under those policies, the EPA sought to regulate carbon dioxide emissions from power plants.
The Clean Air Act allows EPA to set certain emissions limits based on what is achievable through the “best system of emission reduction.” The limits in that best system” were based in part on transition of energy production to cleaner energy sources—including “cap and trade” economic incentives for reducing emissions—and would have had a direct impact on the ability of legacy coal-fired power plants to meet requirements and continue operating.
The Supreme Court ruled that the EPA exceeded its authority to enact an emissions reduction program based on a shift in power generation from one source to another. The ruling does not necessarily limit the EPA’s authority to regulate greenhouse gases; it just limits its ability to regulate greenhouse gases using a “system” that calls for a shift in how the power is produced. Read the full article.
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