West Virginia Attorney General Patrick Morrisey led a coalition of 19 states have filed an opening brief in their landmark case against the Environmental Protection Agency at the U.S. Supreme Court.
The Supreme Court agreed to consider the states’ challenge to an appeals court ruling that would give EPA virtually 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.
“The question before the Supreme Court,” Attorney General Morrisey said, “is who we want making our nation’s most important, life-changing decisions. Do we want our elected representatives, who are accountable to the people? Or do we want unelected Washington bureaucrats to do whatever they wish? If West Virginia prevails, 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.”
At issue is an error by a lower court in which it 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.
Among other things, the coalition argues that this is such a substantially important question that an administrative agency such as EPA cannot decide it unless Congress clearly says it can.
The coalition also asserts 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 case marks the most consequential development in environmental law since Attorney General Morrisey won an historic and unprecedented stay of the Obama-era Clean Power Plan at the Supreme Court in February 2016.
The Attorney General, in leading the 19-state coalition, urged the Supreme Court to take the case in April, arguing the appeals court had ignored the February 2016 stay. That stay should have hinted that the high court viewed existing law as limiting EPA’s authority – not expanding it.
Without the Supreme Court’s intervention, the coalition has consistently argued the appeals 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.
Indeed, if left intact, the lower court would grant EPA even greater authority than President Obama’s EPA originally claimed with its so-called Clean Power Plan.
Attorney General Morrisey challenged the Obama-era power plan on the day it was published.
President Trump’s EPA, in acknowledging the February 2016 stay, repealed the rule in 2019. An initial challenge to the Clean Power Plan was dismissed by the appeals court without the Supreme Court having a chance to resolve the matter on the merits.
West Virginia led the brief with support from attorneys general in Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wyoming and the governor of Mississippi.
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