Stateside Podcast: What West Virginia v. EPA means for Michigan
In West Virginia v. Environmental Protection Agency, the Supreme Court ruled to restrict the federal government’s regulatory powers around enforcing the Clean Power Plan.
The Clean Power Plan was an Obama era project that intended to shift power plants from using coal to clean energy sources. Stalled in the courts, the plan never came into effect.
The Supreme Court decision means that the courts can strike down administrative agencies rules and regulations; essentially allowing the courts to act as micro-managers of new agency regulations.
Great Lakes Environmental Law Center Executive Director Nick Leonard said that the Court is injecting itself into the EPA's decision making through the “major questions doctrine.” If a regulatory agency wants to address a big issue, they need to have “a clear statutory mandate from Congress.” As for what this doctrine covers and what a clear mandate from Congress is, Leonard said that the Court did not explain either.
“The key question going forward is: how is that major questions doctrine going to interfere with agency rulemaking going forward including climate change rules that the EPA may pass,” Leonard said. “That’s a very open question.”
Nick Schroeck, an Associate Dean and environmental law expert at the University of Detroit Mercy, said that the Clean Air Act — the law behind the Clean Power Plan — was created to improve the quality of air in the nation and that Congress gave the EPA the power to regulate in this territory. He said that Congress is not well situated to make very detailed and science based decisions, so instead of trying to do so, they pass laws stating goals. These goals are then up to the regulators to achieve.
“Now you’ve got the Supreme Court stepping in and saying, ‘Well wait a minute Congress wasn’t specific enough in their delegation of that authority or that direction to the EPA,” Schroeck said.
The decision by the Court does not effect the authority that state governments have to regulate, Leonard said. The states should now — in the wake of the decision — tightly regulate the energy sector because the federal regulation may not be there to back them up anymore.
But there is a limit to this. Pollution, Schroeck points out, does not recognize state borders, so one state deciding to have poor regulation will still impact neighboring states. In order to properly address climate change, a federal response is vital.
For Michigan, one of the biggest concerns is the health of the Great Lakes.
"[I]t might not be readily apparent that air pollution affects the Great Lakes, but it certainly does," Schroeck said. "We have something called air deposition, which is where particles that get up into the air from burning coal at coal-fired power plants or other industrial processes — they fall down into the Great Lakes either just naturally through the air or in the form of rain. In fact, that's how we have mercury...So, you know, if we're not doing all that we can to regulate air pollution, that certainly does have environmental impacts for the Great Lakes."
Schroeck said that ultimately, the decision by the Court could have been worse than it was. There was concern that the Court would take the same approach that it did with the Dobbs v. Jackson Women's Health Organization case and possibly overturned the Massachusetts v. EPA decision, which allows the EPA to regulate greenhouse gas emissions.
Nick Leonard, Executive Director of the Great Lakes Environmental Law Center
Nick Schroeck, Associate Dean at the University of Detroit Mercy Law School
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Music in this episode is by Blue Dot Sessions.