Environmental lawyers have been preparing for this moment for years: The Supreme Court has rendered many climate regulations newly vulnerable to legal challenges.
By overturning Chevron deference, the courts are giving themselves more authority to interpret laws — a fact that’s frightening environmental leaders, who say scientists and technical experts will lose decision-making power.
Companies, too, that have cheered the opportunity to challenge burdensome regulations will have to reckon with possible unpredictability in the courts.
The timing couldn’t be worse for environmental activists. The Biden administration has been on an environmental regulatory spree over the last several months, issuing transformative rules on power plant emissions, vehicle emissions, air quality, corporate climate disclosures and land use, among many others.
Many of those regulations already face legal challenges — and several attorneys told NOTUS that they expect the court’s ruling to strengthen those challenges further. While Biden’s agencies have crafted these recent regulations to avoid depending on Chevron, even that careful strategy cannot fully protect them from the new power courts will have in reviewing their decisions.
“The bigger the deal, the greater the importance of the regulation, the less likely the agency’s view of what is best will prevail,” said Thomas Lorenzen, a former Department of Justice environmental attorney now representing utilities in their challenge to Biden’s power plant emissions rule. “I would say everything is vulnerable at this point because no longer are you going to say, ‘Tie goes to the agency.’ It’s now the court.”
Lorenzen, who helps lead the D.C. law firm Crowell and Moring’s environmental work, anticipates a few specific Biden environmental rules will be especially vulnerable.
Biden’s motor vehicle emissions standards, for example, which in its current form would force auto producers away from combustion vehicles and toward EVs, could raise new legal questions over the EPA’s authority to produce such outcomes. Likewise with Biden’s power plant rule, which relies on carbon capture technology as the best possible standard for reducing emissions. A question that could now be up for a legal challenge: Is relying on carbon capture and sequestration the best possible interpretation of the language giving the EPA the right to limit those emissions?
“My guess is the court is going to look at that and say, ‘That’s not the best interpretation,’” Lorenzen said. “The more that a rule rests in an interpretation of the statutory language, rather than a weighing of the facts in the record, the more vulnerable the rule is likely to be. The rules that push the limits of what the plain text of the statute can support are going to be the most vulnerable.”
A Securities and Exchange Commission rule mandating that companies disclose their greenhouse gas emissions and a rule that reforms the federal environmental permitting law would also be obvious targets, Lorenzen said.
“I think everything is going to be fair game again. I think we’re going to see a big flooding of litigation where all sorts of agency rules and regulations are being challenged, including some of the new ones that we’re seeing from the Biden administration,” said Jim Murphy, the director of legal advocacy for the National Wildlife Federation. Murphy’s list of possible rules ripe for a legal challenge also included the Biden administration’s decision to restore state and tribes’ rights to review, and possibly stop, federal infrastructure projects that will affect their water quality.
Environmental groups across the board said the Supreme Court’s rulings this term — including an opinion this week indefinitely blocking part of the Biden administration’s air pollution plan — have indicated a hostility to climate regulations.
“What this is going to do is embolden the most conservative judges in the appeals and lower courts, particularly the Trump appointees, to just do what they feel like with these regulations rather than giving regulatory agencies a fair shake,” said Sambhav Sankar, a senior vice president at Earthjustice.
Several cited concerns that the courts cannot necessarily be trusted to make complex, science-based decisions.
“If you have a bureaucracy that wears robes rather than a bureaucracy that has scientists deciding what those terms mean, it’s hard to expect that you are going to get a rational regime that properly serves the public interest over the long term,” said Sanjay Narayan, a managing attorney with the Sierra Club. “What the decision threatens to do is insert the bureaucrats wearing robes into that decision, as opposed to the agency folks who have been doing this for a long time and know how to do it.”
And while some companies might be cheering the opportunities this change will give them, many corporations are going to face a fractured regulatory environment that can be bad for business, Lorenzen said.
“It’s not the president that’s going to decide. It’s not the election that’s going to matter. It is the judges,” Lorenzen said.
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Anna Kramer is a reporter at NOTUS.