Earlier this year, the U.S. Supreme Court in West Virginia v. EPA ruled that the Clean Air Act does not authorize the EPA to require a systematic shift to cleaner sources of electricity generation. Many fear this decision will be devastating to the agency’s and the executive branch’s ability to move the U.S. away from carbon-intensive energy sources and toward cleaner resources to address climate change in the accelerated timeline necessary to avoid its worst impacts. 

So, in this episode, Chad Reed sits down with Max Rodriguez, an attorney with Pollock Cohen and the primary author of an amicus curiae brief on behalf of 192 Members of Congress supporting the EPA’s authority to regulate carbon emissions under the Clean Air Act. Max discusses in depth the history and justiciability of the case, the major questions doctrine underpinning it, the potentially far-reaching implications of the decision and the related non-delegation doctrine for federal environmental regulations going forward, and much more.

Importantly, the Inflation Reduction Act, which passed after this episode was recorded, amends the Clean Air Act to add several specific new programs to reduce greenhouse gas emissions and provide funding to the states to develop their own plans. Taken together, these provisions go a long way towards addressing the view of the 6-3 majority in West Virginia v. EPA that Congress has not been clear enough regarding the EPA’s authority to tackle climate change. However, the new law may still fall short of granting EPA the authority to revive the generation-shifting approach struck down by the Court in this case. 

Links:

West Virginia v. Environmental Protection Agency

Brief of 192 Members of Congress as Amici Curiae in Support of Respondents

Article: The Inflation Reduction Act doesn’t get around the Supreme Court’s climate ruling in West Virginia v. EPA, but it does strengthen EPA’s future abilities (The Conversation, August 24, 2022)

Episode recorded: August 8, 2022

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