This post was originally published on Legal Planet. Reprinted with permission.
In West Virginia v. EPA, the U.S. Supreme Court struck down the Obama-era Clean Power Plan. The heart of the ruling was that the U.S. Environmental Protection Agency (EPA) had engaged in a power grab, basing an unprecedented expansion of its regulatory authority on an obscure provision of the statute. Conservative groups have claimed since then that virtually every government regulation raises a major question. But the doctrine cannot be read that broadly.
In particular, the doctrine does not apply to the emission standards for cars that EPA issued last week. As EPA explains in its prologue to the rule, the car standard is very different from the Clean Power Plan.
In striking down the Clean Power Plan, the Supreme Court pointed to several factors: the statutory provision in question was obscure and rarely used; EPA’s expertise is pollution, not the power grid; states, not the federal government, decide what types of power generation to build; and the president had previously tried but failed to get legislation of similar import. None of these apply to the new car rule.
These differences would strike me as decisive, but I would also emphasize four other important differences between the regulation and the Clean Power Plan:
First, the Clean Power Plan was qualitatively different from previous EPA regulations, not just different in degree. There’s no such thing as a hybrid wind/coal power plant. The distinction between renewables and fossil fuel generation is stark, and EPA had not previously tried to dictate a utility’s energy source. But there is a progression from conventional hybrids, where batteries reduce gas use; to plug-in hybrids, where the battery can run the car for shorter trips; to pure EVs that always run on battery. Thus, while EPA crossed a clearcut line in the Clean Power Plan, it has not done so in the car rule.
Second, there was a tight link between the Clean Power Plan and reductions in coal because replacing the use of coal was the only feasible way to cut CO2 emissions from coal plants. But the linkage is a lot looser under the car standards. EPA also modeled non-EV approaches that could be used to meet the standard, so switching to electric power is not the only form of compliance.
Notably, EPA points out that in the past, carmakers have unexpectedly found ways to comply with standards while retaining reliance on gasoline.
“Looking specifically at electrification technologies, start-stop systems were projected at 45 percent and were used in 10 percent of vehicles, while strong hybrids were projected to be 6.5 percent of the MY 2016 fleet and were actually only 2 percent. Notwithstanding these differences between EPA’s projections and actual manufacturer decisions, the industry as a whole was not only able to comply with the standards during the period of those standards (2012-2016), but to generate substantial additional credits for overcompliance.” [p. 175 of the pre-Federal Register version of the rule]
Thus, while the Clean Power Plan directly managed the fuel mix of utilities, the connection between the rule and automotive power sources is much more flexible.
Third, the Inflation Reduction Act and the Infrastructure Law both include billions of dollars relating to electric vehicles. In fact, Congress required EPA to include projected growth of EVs in its modeling for new regulations. In short, Congress seems fully on board with shifting the industry away from gas cars toward EVs. Congress actually has made the basic policy judgment rather than EPA grabbing authority in face of congressional opposition.
Fourth, unlike the Clean Power Plan, this regulation is not just about greenhouse gases and climate change. It also applies to conventional air pollutants — the same pollutants that EPA has regulated since the Clean Air Act was passed in 1970. Climate change strengthens the argument on behalf of the new standards. But even if EPA had never had jurisdiction over greenhouse gases, it would still find EVs a promising way to clean up the air.
The bottom line is that last week's new regulations for car emissions are much more a variation on a familiar theme than a sharp departure from past practice. That distinguishes the new regulation from the Clean Power Plan and should also take the major questions doctrine off the table.
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Daniel Farber | March 28, 2024
In West Virginia v. EPA, the U.S. Supreme Court struck down the Obama-era Clean Power Plan. The heart of the ruling was that the U.S. Environmental Protection Agency (EPA) had engaged in a power grab, basing an unprecedented expansion of its regulatory authority on an obscure provision of the statute. Conservative groups have claimed since then that virtually every government regulation raises a major question. But the doctrine cannot be read that broadly. In particular, the doctrine does not apply to the emission standards for cars that EPA issued last week. As EPA explains in its prologue to the rule, the car standard is very different from the Clean Power Plan.
Sophie Loeb | March 27, 2024
Today, the Center for Progressive Reform is publishing a new policy brief. Missing the Mark: How North Carolina’s Decarbonization Efforts Fall Short and How to Fix Them examines the pitfalls of North Carolina’s decarbonization plan (known as the Carbon Plan and developed by Duke Energy) and alternative models to address those shortcomings.
Daniel Farber | March 26, 2024
The Chevron doctrine requires judges to defer to an agency’s interpretation of a statute if that interpretation is reasonable. The State Farm case, which is much less widely known, requires courts to defer to an agency’s expert judgment unless its reasoning has ignored contrary evidence or has a logical hole. As you probably already know, two cases now before the Court will probably result in abandoning or revamping Chevron. But the “abortion pill” case that will be argued today will test the Court’s adherence to State Farm. Will the conservative Justices stand by State Farm even when doing so expands access to abortion?
Federico Holm | March 25, 2024
My colleagues at the Center for Progressive Reform and I recently published a report and interactive map examining how local ordinances that restrict clean energy development can impose major obstacles in our efforts toward a just clean energy transition. Among the many important findings in our report, we highlighted the high degree of variability that exists between states in the way large-scale clean energy generation is regulated. In some cases, like Illinois and Michigan, governments have empowered state authorities to override local siting measures; other states have given local governments more decision-making powers to decide if and how renewable infrastructure can be built. Among the latter is Ohio.
Victor Flatt | March 14, 2024
Last week, the U.S. Securities and Exchange Commission (SEC) released its long-awaited final rule requiring publicly traded companies to report certain climate risks and greenhouse gas emissions as part of their financial risk disclosures.
James Goodwin | March 5, 2024
As discussed in yesterday’s post, the contemporary conservative movement is prepared to use legal battles over esoteric administrative law doctrines, such as Chevron deference, as a tool of ideological warfare. Importantly, though, these battles present progressives with a great opportunity to engage at the ideological level as well. After all, progressives have been busy developing their own competing vision of what our constitutional democracy should look like. They should seize the opportunity presented by the fight over Chevron deference’s future to articulate and advance that vision.
James Goodwin | March 4, 2024
In Part 1 of this three-part series, I introduced the rapidly boiling legal battle over a once-obscure administrative law doctrine known as Chevron deference. Much of the commentary to this point has focused on the political motivations behind the conservative attack on Chevron deference. In this second post, I will take a closer look at how conservatives have carefully crafted this battle (and their broader war on the administrative state) to promote their distinctive brand of ideological thought.
James Goodwin | March 4, 2024
In January, the U.S. Supreme Court heard oral arguments in a pair of related cases — Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce — which could be among the most consequential decisions for U.S. democracy that the Court has ever issued. That’s because the cases urge the Court to overturn a longstanding judicial doctrine called Chevron deference. Over the last 40 years, that doctrine has provided a practical framework for mediating the growing separation-of-powers fights among the three branches for control over administrative agencies, with the preservation of the administrative state’s essential democratic foundation as its guiding star.
Robert Fischman | February 29, 2024
How should the United States manage the largest biodiversity conservation system to be greater than the sum of its parts? This vexing question for the national wildlife refuges has received scant attention for the past quarter century. Now the U.S. Fish & Wildlife Service (Service), which administers the refuge system, has proposed a rule to guide specific refuge decisions to ensure they contribute to a national network rather than incrementally fray the web of conservation.