Supreme Court could restrict powers of agencies


The Supreme Court could then influence the scope of powers granted to federal agencies.

With high-profile gun and abortion disputes on the horizon, the Supreme Court’s tenure begins Monday with a groundwater dispute between Mississippi and Tennessee.

But the real successful environmental battles could come from a series of pending petitions for the Supreme Court to engage in legal battles over the scope of EPA regulations under national air quality laws. and water.

“The environmental struggle at the Supreme Court significantly overlaps with the struggle for executive power and agency power,” said Sean Marotta, partner at the Hogan Lovells law firm. “What we see in the environmental decisions of the Court are not so much strong feelings about the environment as overbroad fears of the agencies.”

Four judges must vote in favor of a petition to the Supreme Court. The court only grants about 1% of the cases it receives.

Among the petitions the Supreme Court might choose to accept this term is a set of demands from Republican-led states and coal companies to overturn a decision this year that overturned the Trump administration’s rule. on clean and affordable energy (CEA) (Energy wire, August 10).

The ACE rule gutted the Obama-era Clean Power Plan, which aimed to reduce carbon dioxide emissions from coal-fired power plants. The Biden administration has said it plans to develop a whole new regulation.

While legal experts say they expect the ACE dispute to land on the Supreme Court’s dismissal pile, there is one argument that makes them pause.

In the petition North American Coal Corp. vs. EPA, a coal producer has asked the court to decide whether the Clean Air Act gives the agency the power to impose climate regulations.

“Even though it’s a fallacious argument, it’s a killer,” said Pat Parenteau, a professor at Vermont Law School. He added: “Maybe this will tempt some of the hard right.”

Judges will also have a chance to tackle agency powers in a non-environmental calendar case: a dispute over Medicare drug reimbursement that could test the limits of Chevron deference, the 1984 Supreme Court precedent that gave federal agencies leeway to interpret ambiguous laws.

“It seems there was no reason for the court to admit that other than the court wants to take the reins on ChevronSaid Sarah Harris, partner at Williams & Connolly LLP.

The upcoming term could also provide new insight into how the addition of Judge Amy Coney Barrett – who is now one of six Tories on the nine-member tribunal – is likely to affect the outcome of environmental litigation. and climate for decades to come.

“The climate crisis is the new reality,” said Karen Sokol, professor of law at Loyola University. “If this is not infused into government decision-making, government will not be of much use to us. “

She added: “There is a disconnect between this reality and the current Supreme Court majority. “

Environmental lawyers also fear that the Conservative majority will end up repealing the Biden administration’s climate regulations through the court’s’ shadow case ‘, a term used to describe judges’ practice of issuing orders. emergency without the process of informing, arguing and drafting opinions that occurs. in cases on the merits of the court record.

The Supreme Court’s suspension of the Clean Power Plan in 2016 was one of the first times judges passed a significant policy change through an emergency ordinance (Green wire, August 24).

At a recent panel discussion hosted by the State Energy & Environmental Impact Center at the NYU School of Law, Oklahoma Attorney General Mithun Mansinghani said he expects the parties to continue asking emergency help to the Supreme Court if major political decisions continue to come from the executive. – rather than by acts of Congress.

“It is certainly a symptom of the larger problem of the rise of administrative law and a lot of policy making that takes place in the administrative space rather than through legislation,” he said.

Here is an overview of the major environmental battles of this term:

Case on the calendar

Mississippi v. Tennessee: The Supreme Court currently has only one environmental case on its calendar: a groundwater dispute between two southeastern states.

Mississippi has made the unusual argument that it has the sole claim – rather than a shared interest – for water in an aquifer that straddles the state of Magnolia’s border with Tennessee. The dispute invokes the original jurisdiction of the Supreme Court over legal disputes between states.

This is one of the many interstate water battles that have resulted in the Supreme Court in recent years. Legal experts expect many more such cases to reach judges as water resources dwindle due to climate change.

The debates are scheduled for Monday.

American Hospital Association v. Becerra: A battle over Medicare reimbursements for certain drugs could give environmental disputes a hard time.

The case concerns Chevron deference and the power of the Department of Health and Social Services to establish drug reimbursement rates based on the average cost of acquiring a drug and to establish rates that vary by hospital group.

A general ruling in the case could potentially affect future legal battles over the authority of the EPA to develop climate regulations and other matters.

Arguments are scheduled for November 30.

Pending petitions

In addition to petitions from the coal companies and the Red States over the ACE rule, there are several other pending requests for the Supreme Court to consider new environmental cases. Each request has a low chance of being accepted by the court.

Here are the main environmental claims that the court could choose to accept in the coming months:

Sackett v. EPA: An Idaho couple is using their long-standing legal battle for the Clean Water Act to urge the Supreme Court to give a more definitive answer on the scope of the law.

Michael and Chantell Sackett, represented by the Pacific Legal Foundation, asked the judges to review the court’s famous confused 4-1-4 decision in Rapanos v. United States.

The 2006 decision resulted in two competing definitions of “United States waters” or WOTUS, each of which formed the basis of key Clean Water Act regulations under the Trump and Obama administrations. President Biden’s EPA and the Army Corps of Engineers are expected to issue a new WOTUS rule in the coming years.

Dakota Access LLC v. Standing Rock Sioux Tribe: The developer of the Dakota Access pipeline is looking to judges to weigh on the power of federal courts to order more rigorous National Environmental Policy Act reviews for projects.

Energy Transfer LP asked whether an agency is required to resolve all criticisms of its analysis of a proposed project to the satisfaction of a court before concluding that a project does not require a more rigorous NEPA assessment. Such a standard, the company argued, transfers power from the agencies to the courts.

The request follows a ruling earlier this year by the United States Court of Appeals for the District of Columbia Circuit, upholding a lower court decision to deny a key permit for the Dakota Access pipeline in service. The court ordered the Army Corps to conduct a stricter NEPA review of the project.

Dakota Access, which runs 1,172 miles between North Dakota and Illinois, currently operates without its permit to cross under Lake Oahe in the Dakotas.

Monsanto Co. v. Hardeman: Monsanto is asking the Supreme Court to stop a massive legal battle involving allegations the company’s Roundup weedkiller causes cancer.

The petition stems from a lower court ruling that upheld $ 25 million in compensation for California resident Edwin Hardeman, who said he developed non-Hodgkin lymphoma after exposure to glyphosate, the key ingredient in Roundup .

Monsanto argued that federal law should have blocked claims from Hardeman and other Roundup users.

Volkswagen Group of America Inc. v. Hillsborough County Environmental Protection Commission, Florida: The Supreme Court could choose to rule on Volkswagen AG’s argument that federal law should have prevented two states from seeking payment from the automaker for a diesel emissions fraud scandal.

Volkswagen has already agreed to pay more than $ 20 billion to resolve federal civil and criminal claims with the EPA.

The Justice Department has asked the Supreme Court not to get involved in the automaker’s fight with officials in Florida and Utah. Such requests from the DOJ usually carry extra weight with the judges.

Volkswagen has filed a separate Supreme Court petition related to a similar legal battle in Ohio.

Several petitions for annulment McGirt v. Oklahoma: The state earlier is calling on judges to overturn, or at least limit, their 5-4 decision last year which recognized nearly half of the state as tribal reserve land.

The case, McGirt v. Oklahoma, dealt with whether the state had jurisdiction over a criminal case brought against a member of the Muscogee (Creek) Nation for an alleged felony on reserve lands. The decision also had implications for energy and environmental regulation in Oklahoma.

John Cruden, director of Beveridge & Diamond PC, said he believes judges are unlikely to be swayed by Oklahoma’s arguments that the McGirt This decision caused “great turmoil” in the state.

After all, he said, judges have yet to dive back into the debate over the jurisdiction of the Clean Water Act, despite the regulatory ping-pong that has taken place since this issue was brought to court. in 2006.

“They never took another WOTUS case after Rapanos“said Cruden.

Journalist Niina H. Farah contributed.

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