WASHINGTON — West Virginia and other states are going to the U.S. Supreme Court to stop an attempt by the EPA (Environmental Protection Agency) to transform the nation’s power sector through emissions regulations.
Attorney General Patrick Morrisey announced Monday the Supreme Court has agreed to consider the coalition of 19 states’ challenge to the EPA, which, if left unchecked, would have “unlimited authority to regulate wide swaths of everyday life. The lower court decision endorsed rules that would devastate coal mining, increase consumers’ energy costs and eliminate countless jobs.”
“Our case is one of the most important cases before the Supreme Court this session and the outcome would have a ripple effect across the nation and hit West Virginia particularly hard,” Morrisey said. “If West Virginia prevails in our case, Congress will decide important questions related to our economy, the power grid, climate change, and more—just as the Constitution intended it to do. If not, then EPA can arbitrarily implement regulations that increase utility bills, create job losses, close down coal plants and much worse.”
Morrisey said the issue is an “error” by a lower court that “read a narrow provision of federal law as granting EPA broad authority to unilaterally decarbonize virtually any sector of the economy, including factories and power plants.”
The coalition asserts these questions are so “substantially important” that an administrative agency such as the EPA “cannot decide it unless Congress clearly says it can.”
Not only that, Congress “must speak in even plainer terms before an agency can be allowed to upset the balance of power between the federal government and the states. No federal law includes such a ‘clear statement’ here,” the coalition said.
Sen. Shelley Moore Capito, R-W.Va., has also joined the fight to limit the EPA’s power.
Capito, Ranking Member of the Senate Environment and Public Works (EPW) Committee, and Rep. Cathy McMorris Rodgers (R-Wash.), Republican Leader of the House Energy and Commerce Committee, led 47 senators and 44 House members in filling a brief in the Supreme Court to support the coalition.
“If Congress had intended to give the EPA such sweeping authority to transform an entire sector of our economy, Congress would have done so explicitly,” the brief says. “An administrative agency like the EPA may decide issues of such vast economic and political significance only when the agency can point to ‘clear congressional authorization.’”
The brief says a decision “regarding greenhouse gas emissions and the power sector are major policy questions with vast economic and political significance.”
“Only elected members of Congress, representing the will of the people, may decide these questions,” the brief said. “The EPA’s attempt to issue expansive regulations cannot stand in the absence of clear congressional authorization. Congress knows how to address greenhouse gas emissions. In recent years, Congress has decided to pass transformative laws that incentivize reductions in greenhouse gas emissions from a wide range of industries, including the electric power sector.”
Morrisey, in leading the 19-state coalition, urged the Supreme Court to take the case in April of this year, arguing the appeals court had ignored the February 2016 stay, which Morrisey had also led. That stay should have hinted that the high court viewed existing law as limiting EPA’s authority – not expanding it, he said.
Without the Supreme Court’s intervention, he said, the coalition has consistently argued the lower court ruling could set a “devastating standard and lead to decisions of great economic consequence based upon unlawful EPA regulations, not the rule of law.”
Morrisey said former Pres. President Trump’s EPA acknowledged the February 2016 stay and repealed the rule in 2019.
An initial challenge to the Clean Power Plan was dismissed by the appeals court, but “without the Supreme Court having a chance to resolve the matter on the merits.”
When Morrisey addressed the coalition’s challenge to the EPA in a press conference Monday, he was joined at the event by Chris Hamilton, president of the West Virginia Coal Association; Jason Bostic, vice president of the West Virginia Coal Association; Bryan Brown, principal and owner of Bryan Brown Communications; Mike Clowser, executive director at Contractors Association of West Virginia; and Jared Wyrick, president of West Virginia Automobile Dealers Association.