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GOP attorneys general set to argue EPA’s authority over planet-warming gases

The Supreme Court is seen at dusk Oct. 22, 2021, in Washington, D.C. (AP Photo/J. Scott Applewhite, File)

(CNN) — The Environmental Protection Agency faces a Supreme Court case on Monday that could deal a significant blow to the federal government’s ability to fight the climate crisis and prevent its worst outcomes.

Republican attorneys general will argue the EPA has no authority to regulate planet-warming emissions from the power sector. Instead, they will say that authority should be given to Congress.

The case also has enormous implications for President Joe Biden’s climate agenda. With legislative action on climate looking uncertain at best, a Supreme Court decision siding with coal companies could undercut an important way the administration planned to slash emissions at a moment when scientists are sounding alarms about the accelerating pace of global warming.

The power sector is the country’s second-largest emitter of greenhouse gas. Power emissions rose last year, mainly driven by coal.

Experts say West Virginia v. EPA is a highly unusual case, because there is no current EPA rule on power plant emissions. Plaintiffs are asking the court to block the EPA from implementing future rules.

“All of this feels quite unprecedented,” Jody Freeman, a Harvard Law School professor and former Obama administration official, told CNN.

Here’s what you need to know about the case and its possible outcomes.

Who brought the lawsuit and what do they want?

West Virginia Attorney General Patrick Morrisey is the main plaintiff in this case, joined by Republican attorneys general from more than a dozen other states. Morrisey’s office is also representing two coal companies: The North American Coal Corporation, and Westmoreland Mining Holdings, LLC.

The plaintiffs are challenging the EPA’s authority to regulate greenhouse gas emissions coming from power plants and saying this power should be taken away from the agency and given to Congress.

“I think this is really about a fundamental question of who decides the major issues of the day,” Morrisey said at a media event earlier this month. “Should it be unelected bureaucrats, or should it be the people’s representatives in Congress? That’s what this case is all about.”

U.S. power plants have historically generated electricity by burning coal; however, coal use is declining as renewables and natural gas have grown in the power sector.

West Virginia and several other plaintiff states are also coal mining states.

What do the defendants say?

The U.S. Solicitor General is representing the Biden administration and the EPA. Several environmental groups, Democratic lawmakers, power companies and their trade association have filed amicus briefs in support of the defendants.

The Biden administration says the case should be dismissed, in large part because there is no federal regulation for power plants on the books right now. The Obama-era Clean Power Plan is long dead, as is the Trump-era Affordable Clean Energy rule that replaced it.

President Biden’s EPA hasn’t yet issued its own rule to regulate greenhouse gas emissions from power plants and is expected to do so after Monday’s oral arguments.

“Normally, courts review actual regulations, and there is no regulation to review right now,” New York University law professor and environmental law expert Ricky Revesz told CNN. “Whatever the court does will involve speculation, and courts don’t normally — they stress this — give advisory opinions. That’s not what courts do.”

Who else is involved?

In an interesting twist, some power companies are siding with EPA and will have the opportunity to argue their case directly during oral arguments.

The power sector is very nervous about the implications of repealing the EPA’s regulatory authority. In its amicus brief, the industry’s powerful trade group, Edison Electric Institute, said that stripping EPA of its authority “would be chaos” for its companies and open them up to constant litigation.

“Instead of EPA utilizing its world of expert authority to craft regulations, our members would be thrown into a world of tort and nuisance suits,” Alex Bond, deputy general counsel for climate and clean energy at Edison Electric Institute, told CNN. “That’s a world of tremendous risk and uncertainty.”

Legal experts and environmental groups are watching to see whether this argument from the power industry could strike a chord with conservative justices.

“I think the court is attentive to business,” Freeman said. “It is striking that the industry that is the one to be regulated is not the petitioner.”

What’s being argued?

The things being argued in front of the Supreme Court are quite broad.

Morrisey and other plaintiffs say the Clean Air Act doesn’t explicitly say the EPA can regulate greenhouse gas emissions from power plants. But rather than asking for limits on EPA’s authority, are urging the Supreme Court to invoke two legal theories which would, in effect, give Congress the power to make decisions about regulating power plant emissions, instead of agencies.

“These federal agencies don’t have the ability to act on their own without getting a clear statement from Congress,” Morrisey said at the media event. “If you have something that’s major, you have to make sure Congress steps in, and Congress gets to make these major decisions of the day.”

But legal experts say Congress already used its broad delegation power with the Clean Air Act, which has been reaffirmed by the Supreme Court itself. In two separate rulings — one of them unanimous — the Supreme Court found the EPA does have the authority to regulate greenhouse gas emissions (Massachusetts v. EPA and American Electric Power Co. v. Connecticut).

In addition, delegating this power to an already slow-moving branch of government could present an obvious logistical challenge.

“On the surface it sounds like a reasonable thing to say: Congress should speak clearly,” said Freeman. “But historically in practice we have taken ‘broad delegation’ as just that — broad delegation” to the agencies to make decisions.

What are the range of outcomes?

The conservative supermajority makes the outcome of this case tough to predict, but there are a few possibilities.

Case dismissal: In its brief, the U.S. Solicitor General’s Office asks the Supreme Court to dismiss the case, saying the Republican state attorneys general and coal companies lack standing because there’s no EPA regulation currently in effect.

Administration lawyers are also proposing the court could vacate and nullify the District of Columbia Circuit Court’s January 2021 ruling that spurred West Virginia’s challenge. In effect, that could wipe the slate clean and allow Biden’s EPA to proceed with its own power plant rules.

A narrow ruling: The court could issue a narrower ruling that allows EPA to keep its authority to regulate, but says the agency can only issue rulings that impacts power companies “inside the fence.” This would restrict EPA to narrower regulations that power plants could achieve inside their own fence lines — like carbon capture — rather than pushing them to add cleaner sources of energy.

EPA’s worst-case scenario: The court could overturn Massachusetts v. EPA and give the authority to regulate greenhouse gas emissions from power plants to Congress.

Are there justices to watch?

Most of the action will be on the court’s conservative bench.

Defendants, plaintiffs and outside experts say they’ll be watching the court’s newest justices: Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch. Barrett is a bit of an unknown when it comes to environmental law, experts told CNN.

“I think everybody’s bet is she would tend to be more skeptical of broad agency authority,” Freeman said.