The EPA Defies the Supreme Court The agency imposes a ‘suite’ of climate policies and doesn’t even try to hide its own lawlessness. By Chris Horner
In politics, inadvertently telling the truth is called a “gaffe.” Last year Michael Regan, administrator of the Environmental Protection Agency, made a remark in passing that gave away the Biden administration’s plans for enforcing its climate agenda through a “suite of rules” imposed under programs lacking any credible connection to climate. A few months later, a Supreme Court opinion transformed Mr. Regan’s indiscretion into justification for wholesale judicial repudiation of the Biden administration’s climate regulatory blitz.
Mr. Regan’s comment came on March 10, 2022, when he addressed the press following his keynote address to CERAWeek, a climate conference in Houston. A reporter asked about vulnerabilities of the EPA’s approach to installing climate regulation through the Obama-Biden Clean Power Plan, which was then awaiting judgment by the court. Mr. Regan replied that the agency had abandoned the idea of relying on any specific grant of regulatory authority. Instead it was in the process of tightening rules under numerous and varied regulatory programs all at once, pressuring disfavored operations to close and compelling investment consistent with the EPA’s desires.
Mr. Regan went on to cite rules to tighten regulation of mercury, ozone, soot, hazardous air pollutants, water effluent and coal ash under acknowledged congressional grants of authority. But he also called the “expedited retirement” of power plants “the best tool for reducing greenhouse-gas emissions” and opined that the “industry gets to take a look at this suite of rules all at once and say, ‘Is it worth doubling down on investments in this current facility or operation, or should we look at the cost and say no, it’s time to pivot and invest in a clean-energy future?’ ”
This already reflected something of a scofflaw position. Congress never approved what Mr. Regan described. It became a serious problem when the justices struck down the Clean Power Plan in June. West Virginia v. EPA held that the agency didn’t have the authority it claimed to force power-plant closures by setting unmeetable emission standards and thus dictate, as the court had put it, “how Americans get their energy.”
Chief Justice John Roberts noted for the 6-3 majority that after Congress had repeatedly considered and rejected providing the agency authority to regulate power-sector greenhouse gases, the EPA claimed “to discover an unheralded power” that represented a “transformative expansion in [its] regulatory authority” to force “generation shifting.”
The court invoked the major-questions doctrine—a principle grounded in the separation of powers—which states that when a regulatory agency seeks to impose burdens of “economic and political significance,” there is “reason to hesitate.” If an agency can’t point to “clear congressional authorization,” the authority doesn’t exist.
Many climate activists took the lesson that they should stop bragging about clever regulatory approaches. Two weeks after West Virginia v. EPA came out, the Environmental Law Institute hosted a funereal webinar in which panelists warned about candid outbursts turning up in Supreme Court reversals, mentioning such statements as President Obama’s “if Congress won’t act soon . . . I will,” and Mr. Biden’s then-chief of staff Ron Klain’s tweeting about “the ultimate work-around” of constitutional limits to impose Covid vaccine mandates. Several panelists urged activists to be careful in their press releases and to not let appointees’ cheerleading “get out in front of the lawyers.”
That’s good advice, but the administration appears undeterred. Records obtained by policy groups I represent in Freedom of Information Act litigation show Mr. Biden’s EPA team came in with this plan to hit fossil generation with a barrage of disparate regulations as a climate strategy. One impressively prescient email sent the day after Mr. Biden’s election by law professor and soon-to-be Biden climate advisor Ann Carlson laid out the approach, even using the phrase “suite of climate policies.”
Two weeks into Mr. Biden’s term, a PowerPoint slide show—given by a lawyer named Joe Goffman, who is hailed in media profiles as the administration’s “law whisperer” because “his specialty is teaching old laws to do new tricks”—detailed a plan of tightening regulation on power plants by using solid waste, water and even visibility standards. The audience for his plan to blitz fossil power generation with these non-climate programs? The White House Climate Office. FOIA records also include activist correspondence to Mr. Goffman specifically urging the EPA to tighten “haze” rules as a back door for the climate agenda, which EPA appears to be doing.
Long-held plans are hard to let go. Despite the court’s rejection of each authority the administration has claimed so far to regulate greenhouse gases from power plants, one email written during the immediate post-West Virginia scramble refers to “EPA’s CAA toolbox” for “Power Sector GHG Reductions.” (The abbreviations stand for Clean Air Act and greenhouse gas.)
West Virginia v. EPA addressed power the agency claimed under a specific rule, but the opinion’s scope extends far beyond that rule. The justices flatly stated that trying to force the plant-closure agenda Mr. Regan described, for which the EPA can cite no statutory mandate, presents a “major question” requiring a clear congressional statement of authority.
Academics now call on Mr. Biden to ignore the Supreme Court. His EPA is doing so, while also ignoring Congress. It seems inevitable the court will confront this latest gambit to evade constitutional limits. As always, the question will be how much lasting harm the EPA can inflict before the courts act to stop it.
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