Could the Supreme Court Revive the Trump Administration’s ACE Rule?
Among the cert petitions the justices will consider at tomorrow’s conference are several that ask the Supreme Court to review the opinion by the U.S. Court of Appeals for the D.C. Circuit rejecting the Trump Administration’s approach to the regulation of greenhouse gas emissions from power plants. (See, e.g., here and here.) These petitions were initially distributed for the Court’s end-of-summer conference (aka, the “long conference”), but the Court took no action on them last week, prompting some speculation the justices are giving the case a more serious look.
The various petitions urge the Supreme Court to review and reject the D.C. Circuit’s expansive interpretation of EPA authority to regulate greenhouse gases under the Section 111 of the Clean Air Act. Some argue the lower court’s interpretation of the Act gives the EPA too much leeway. Others argue the court was wrong to accept that the EPA has any authority under Section 7411 (sometimes referred to as Section 111) to regulate greenhouse gas emissions from power plants at all (because of the way Section 7411 interacts with other portions of the Act). Correcting the D.C. Circuit’s errors, they argue, is necessary to prevent the EPA from attempting to impose another round of costly regulations for which it lacks statutory authority. Clarifying the scope of Section 7411, they argue, would ensure that whatever the EPA does next is within the scope of its delegated authority. I also suspect some of the petitioners hope the justices remember that they stayed implementation of the Obama Administration’s Clean Power Plan, and think the D.C. Circuit’s decision points in the opposite direction.
The petitions seeking review of the D.C. Circuit’s decision w
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