in case anyone cares here are some of my thoughts on the SCOTUS GHG case WV v EPA - I get paid for this stuff but you, my friends get it for freezzzzzzzzzzzzz[/size]
I am still taking it in but one impact I see now is the SEC GHG rule, which was already on very shaky legal ground, seems unlike to go into effect, or at least not for long. This decision, taken with the court’s decision over the vax mandate, indicates they are very particular about only agencies that have the expertise and general mission dabbling in an area (the “major questions” doctrine). Indirectly, it is another marker on the road to ending Chevron deference, wherein if its NOT prohibited by Congress, an agency can do most anything related to its mission. This is another indication this Court is meticulous that when it’s not in a law or the constitution, that its up to the states to decide. This bodes ill for many of their Environmental Justice initiatives, because there's not even a law, nor is it part of the other environmental statutes.
I’ve been reading thoughts from the other side, including the inane notion that EPA will have to check with congress before regulating a pollutant, because a section of the opinion can be taken out of context (they are discussing CO2 which isn’t actually a pollutant), and would only be true if 111d of the CAA was the only way to regulate. The opinion specifically upholds the other provisions of the CAA that allow EPA to do this. It just doesn’t allow EPA to misuse a previously little used provision to change a whole industry. EPA can set limits under the CAA, but not tell industries how to get there. That’s the state’s job – the states submit plans to EPA on how they will reach EPA’s limits.
The outlook is for more limits on agency power in the future, provided this makeup of the court continues. I think the interesting thing to see is how this administration and the general market responds. This case was regarding the Obama’s Clean Power Plan (and this admins attempts to replace it), which keep in mind was stayed immediately. Even with that, the power industry, pushed by the financial sector and other inducements, switched to solar and wind pretty quickly which meant upgrades to coal plants and even gas didn’t happen as often, and you ended up with blackouts in even a red state like Texas. There are other factors at play, but the CPP was a factor. They know that even a rule that’s DOA can have influence, so I wonder how much they attempt in light of this ruling. I don’t think they have time in Biden’s first term to finalize a new CPP, but I wonder how much they pull back their other rules. I mean just the concepts in the SEC rule is changing how businesses operate, and that’s likely the point.