The Supreme Court heard a case this week in which, by following the Constitution, it can help states save money, electricity generation, and lives while lower courts consider a legal challenge to strict new regulations that President Joe Biden is trying to impose.
In agency after agency, Biden’s appointees wildly exceed their legal authority, which is why radical new regulations have been struck down so often by courts in areas from education to energy to immigration to health, among others. This time the power grabbers come from the Environmental Protection Agency.
Regulatory law is complicated, and several states are challenging tighter rules on airborne emissions that the wind carries into other states. The new rules, which came suddenly into force in February 2022 without warning, immediately nixed emissions plans in 19 states and several more since. The EPA decided that state plans were faulty even though the statutory time limit had passed for the EPA to object to them.
According to a brief by three states that the Supreme Court considered this week, the EPA also “used nonstatutory factors to deny those plans, relied on data unavailable to the states at the time of their submissions, and contradicted its own earlier guidance.”
Almost all affected states challenged the EPA’s actions in various ways and jurisdictions. Result: The appellate courts for the 4th, 5th, 6th, 8th, 9th, 10th, and 11th circuits blocked the EPA’s edicts from going into effect. All said, the EPA was probably out of line. But a large group of plaintiffs, including three states — Ohio, Indiana, and West Virginia — filed a separate suit in the U.S. Court of Appeals for the District of Columbia Circuit because (for sundry reasons) the EPA rules were still operative in those states even while suspended in others. When the District of Columbia Circuit punted, this plaintiff group appealed to the Supreme Court.
They ask the court to put a hold on the rules while complicated underlying legal issues are litigated in lower courts.
The Supreme Court should grant this request.
Seven straight appeals courts have ruled that it is likely that the EPA power grab will eventually be not just delayed but struck down. The agency acted arbitrarily and arguably beyond its statutory authority. If the rules are allowed to be forced on the three states while the cases make their slow way through the courts, those three states will bear onerous costs that they could never recoup, even if the final judgments go against the EPA.
State agencies would be forced to spend time and money implementing the rules because, according to the states’ legal brief, “each permitting process will require rounds of drafting, staff review, public notice, public meetings, and responses to public comments.” Moreover, in the complicated implementation process, “the States must divert resources away from permitting other infrastructure projects—such as new and expanding power facilities—in order to comply with their compliance burdens under the federal plan. That is no small matter: stopping or slowing progress on other critical infrastructure projects harms the public welfare.”
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States say complying with the new emissions rules “will severely undermine … electricity-generation capacity and destabilize … power grids.” In an emergency such as extreme cold weather, this could threaten lives. We saw the devastation a power grid failure can cause when a deep freeze hit Texas in 2021, cutting power to more than 4.5 million homes and businesses for several days. At least 246 people died because of the grid failure.
Until or unless the EPA wins a final victory in court, which is unlikely, the Supreme Court should suspend the new rule so states avoid its deleterious effects.