Chevron key to emissions reductions

In one well-known case, the Supreme Court relied on the Chevron doctrine in 2014 when it upheld EPA emissions reduction standards for 28 states whose air pollution crossed state lines and harmed downwind neighbors. Although the Clean Air Act is vague on the issue, the court ruled that EPA had reasonably interpreted its authority under the law.

It’s unclear how far the court’s conservative majority will go in its decision.

If the court takes an aggressive step and scuttles the Chevron doctrine, the ruling could make new regulations less ambitious by forcing agencies to consider how courts will interpret statutes that are vague or ambiguous.

“This is something that both progressives and conservatives should be concerned about, if the court is going to start being the policy arbiter,” said Stan Meiburg, a former EPA acting deputy administrator.

Some conservatives say a Supreme Court decision knocking down Chevron could upend EPA’s current climate strategy because it would make courts less apt to accept agency determinations that a judge finds dubious.

EPA’s final rule in April limiting emissions from power plants fueled by coal or natural gas “is incredibly legally vulnerable” if the Supreme Court weakens the Chevron defense, said Andrew Wheeler, who ran the agency under President Donald Trump.

“This is the case that several of the conservative justices on the Supreme Court have been waiting for — that is, I think, custom-made for justices who want to rein in or reverse Chevron,” Wheeler said in a recent “POLITICO Energy” podcast.

Wheeler said the Biden administration “should have waited” until after the court rules on Chevron to propose regulations that could force high-emitting power plants to cut emissions by 90 percent in eight years.

“If Biden is reelected, he’s going to have to redo that regulation anyway, because of [the] Chevron deference case coming out,” said Wheeler, who was an adviser to Virginia Gov. Glenn Youngkin (R) until March.

Jeff Holmstead, an EPA air chief under President George W. Bush and a partner at Bracewell, said a Supreme Court decision limiting or eliminating Chevron could prompt courts to scrutinize agency determinations more closely.

Under three presidents, EPA regulated carbon emissions through a Clean Air Act provision that requires agencies to identify a “best system of emissions reduction” for each category of pollution sources. A best system must be “adequately demonstrated” considering costs and factors such as pollution.

EPA does not require polluters to use the “best system.” Rather, they must reduce emissions to a level that could be achieved using the “best system.”

EPA’s new power plant rule makes carbon capture and storage the “best system.” That requires plants to make ambitious cuts equivalent to a CCS system that captures 90 percent of carbon emissions.

But there is currently only one commercial-scale coal plant operating in the U.S. with CCS — and no gas plants.

With only one CCS project in operation, Holmstead said, EPA would struggle to prove to a court that the technology is “adequately demonstrated.” And courts are unlikely to take EPA’s word for it.

“That’s an example of a case where the idea [is] that it’s not EPA defining what statutory terms mean, it’s the courts,” Holmstead said. “And I think it makes it pretty hard for EPA to argue that CCS has been adequately demonstrated considering costs and other energy impacts.”