With the ACE Rule Cert Grant, Where Is the Court Headed?
| Author | Bethany A. Davis Noll |
| Position | Executive director at NYU Law's State Energy & Environmental Impact Center |
| Pages | 13-13 |
JANUARY/FEBRUARY 2022 | 13
Reprinted by permission from The Environmental Forum®, January/February 2022.
Copyright © 2022, Environmental Law Institute®, Washington, D.C. www.eli.org.
In the Courts
AT THE end of October, the
Supreme Court decided to
take on the Aordable Clean
Energy regulation, a case where it will
be ruling entirely in hypotheticals. ACE
is the Trump administration’s repeal of
the Clean Power Plan, an Obama-era
regulation limiting greenhouse gas
emissions from existing power plants.
at repeal was based on the idea that
the CPP’s reliance on generation shift-
ing was unambiguously illegal. But the
U.S. Court of Appeals for the D.C.
Circuit vacated ACE, holding that
ACE itself “hinged on a fundamental
misconstruction of Section 7411(d) of
the Clean Air Act.”
e Biden EPA has said that it
will not stand by the Trump-era rule
and will rewrite it.
e agency did not
seek review of the
vacatur in the Court,
but West Virginia,
along with a coali-
tion of states and
other petitioners,
did. West Virginia’s request asks a rst
hypothetical: Is EPA “constitution-
ally authorize[d]” to issue a rule that
is “capable of reshaping the nation’s
electricity grids and unilaterally de-
carbonizing virtually any sector of the
economy?”
Westmoreland Mining Holdings
LLC asks another one: does the agen-
cy have the authority to “decide such
matters of vast economic and political
signicance as whether and how to re-
structure the nation’s energy system”?
North American Coal Corporation
asks if Section 111(d) authorizes EPA
to “develop industry-wide systems like
cap-and-trade regimes.” North Dako-
ta asks whether the agency is allowed
to “deprive states of all implementa-
tion and decisionmaking power in
creating their Section 111(d) plans.”
Why are these hypotheticals? Be-
cause EPA has not issued a new rule
seeking to restructure the energy sys-
tem — at least as of press time. In-
stead, it is rethinking its regulatory
approach to the entire sector. None-
theless, the Court has granted the re-
quest to decide how much authority
the agency has to address the power
sector’s greenhouse gas emissions un-
der 111(d).
e ACE case is not the only
one this term that involves claims of
agency overreach. In a recent shad-
ow-docket case, the Court vacated the
Centers for Disease Control’s eviction
moratorium, holding that the CDC’s
reading of the statute would give it a
“breathtaking amount of authority.”
And another case on the docket for
the October term, American Hospital
Association v. Becerra, has to do with
claims that the agency
used a vague or “an-
cillary” term of the
relevant statute to “al-
ter the fundamental
structure of a regula-
tory scheme.”
Claims that agen-
cies are acting outside the scope of
their authority heated up substantially
during the Trump administration. In
a paper published last summer in the
Administrative Law Review, I found
that the Trump administration over-
all enjoyed only a 23 percent win rate
in cases challenging agency actions
(which compares poorly to studies
showing around a 70 percent win rate
for prior administrations).
An interesting trend emerged from
examining those losses: many were
about courts nding that the Trump
administration had acted outside the
bounds of its authority. e cases at the
Court now are about whether agencies
both acted outside the bounds of their
authority and seized control of vast au-
thority. But at bottom both trends have
to do with agencies working to imple-
ment a policy priority of the president,
and courts then taking a searching look.
Interestingly, the ACE rule case is
not the Court’s only opportunity to
review a Trump-era rule disavowed
by the Biden administration. On the
same day it granted certiorari in the
ACE rule case, the Court granted
certiorari in a case about the Public
Charge Rule, designed to deny green
cards to immigrants who might need
to rely on public assistance programs
like food stamps. In that case, the
rule was enjoined in the U.S. Court
of Appeals for the Ninth Circuit and
elsewhere (though not on a nation-
wide basis).
e Trump administration sought
an appeal to the High Court and in
February 2021, the Supreme Court
granted certiorari. After that, Arizona
and a state coalition sought to inter-
vene in the Ninth Circuit. Before that
motion could be decided, the Biden
administration stipulated to dismiss
the Supreme Court case and then
quickly repealed the rule. So what is
left to decide in the Supreme Court?
e Court agreed to hear whether
Arizona and its coalition should have
been permitted to intervene to de-
fend the Trump-era rule.
It seems that the Court may want
to have a say in whether Trump-era
rules should survive. It may also be
scrutinizing the practice of a new
administration that seeks to avoid
defending a prior administration’s
rules. And the Court seems to want
to decide how Section 111(d) should
be interpreted even in the absence of
an agency rule. ese are interesting
times.
With the ACE Rule Cert Grant,
Where Is the Court Headed?
Deciding how Section
111(d) should be
interpreted even in
the absence of a rule
Bethany A. Davis Noll is
executive direc tor at NYU Law’s
State Energ y & Environmenta l Impact
Center: bethany.davisnoll@nyu.edu.
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