In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.
by Michael Burger, Executive Director of the Sabin Center for Climate Change Law; Research Scholar and Lecturer-in-Law at Columbia Law School and Justin Gundlach, Climate Law Fellow at the Sabin Senter for Climate Change Law
Anthropogenic climate change is causing material harm to American communities and the Supreme Court has foreclosed all but one legal basis for federal regulatory action to address the greenhouse gas (GHG) emissions at its root. According to the Court’s decision in in AEP v. Connecticut, the Clean Air Act, which directs the Environmental Protection Agency to prevent air pollution from endangering public health or welfare, “displaces” common law remedies. EPA’s instructions under the Act as the Court has read it are, therefore, to address GHGs and to use the Clean Air Act to do so. To apply the Act’s requirements to existing power plants, the nation’s largest source of GHGs, EPA must interpret what is the “best system of emissions reduction” for that source category—for that is the key language in Clean Air Act section 111(d), which governs “standards of performance for existing sources.” EPA’s interpretation is embodied in the Clean Power Plan.
We wrote an amicus brief on behalf of the U.S. Conference of Mayors, the National League of Cities and over 50 individual municipal governments to convey three key points to the court about climate change and the Clean Power Plan: one factual, one legal and one focused on what the court’s decision would mean for U.S. cities.