Legal Docket - How much authority does the EPA have?

MARY REICHARD, HOST: It’s Monday, March 14th and you’re listening to The WORLD and Everything in It. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time now for Legal Docket.

The U.S. Supreme Court handed down one decision last week. It was unanimous.

The court held that a man who robbed a storage facility multiple times committed only one crime as far as the Armed Career Criminal Act is concerned. The question came up because a trial court found him guilty of committing a total of 10 separate burglaries of the same place on the same night.

Under that law, William Dale Wooden received a sentence of 15 years in prison for possessing a firearm as a felon. It adds prison time to defendants who have three or more prior convictions that the law says were “committed on occasions different from one another.”

Quoting from the opinion now: “Convictions arising from a single criminal episode in the way [this man] did can count only once under the [Armed Career Criminal Act].”

REICHARD: Alright, now on to two oral arguments from late last month.

First, when the federal government will no longer defend a rule, who’s allowed to step in to defend that rule?

The rule in question is the Trump administration’s definition of “public charge.” It aimed to screen out immigrants who seek green cards and who would likely need taxpayer funded benefits, things like food stamps and Medicaid. This idea’s been in U.S. immigration law for centuries, although not used much.

EICHER: The idea is to require that immigrants are self-sufficient. The Biden administration last year rescinded the rule and says it’s crafting a different rule.

But 13 states prefer the Trump era definition of who is a “public charge,” because it’s saved them more than a billion dollars a year.

Arguing on their behalf, Arizona Attorney General Mark Brnovich underscored what he saw as the Biden administration’s end-run around normal procedures:

BRNOVICH: It coordinated with the rule's challengers and dismissed the granted petition by this Court, all of the pending appeals in the lower courts as well, and it left one final nationwide injunction against the rule in place. Based only on that, the Biden Administration rescinded the rule without notice-and-comment rulemaking.

That may be true, but Justice Clarence Thomas pointed to his own experience with new presidents.

THOMAS: What makes this case different from any other case? I mean, when administrations change -- I think this is my fifth administration change. And the new administration often changes its position in cases.

What’s different, Brnovich argued, is the extent of the effort to drop certain litigation the administration didn’t like, but leave in place just one decision out of Illinois. And then use that as reason to rescind the rule, and thereby avoid the proper notice and comment process.

BRNOVICH: Frankly, I'm not aware of any other precedent where you have these types of maneuvers.

So, he argued it best to nip this in the bud right now lest the government use it as a blueprint to evade the law in the future.

On the other side, defending the federal government, Deputy U.S. Solicitor General Brian Fletcher. He argued these states really don’t have any legal means to protect their stated economic interests.

Justice Samuel Alito, with a hint of sarcasm:

ALITO: I congratulate whoever it is in the Justice Department or the executive branch who devised this strategy and was able to implement it with military precision to effect the removal of the issue from our docket, and to sidestep notice-and-comment rulemaking, but all of that took place.

The other side stuck with the argument that there’s nothing to litigate here. That’s because all but one of these states aren’t even in the Ninth Circuit, so the ruling doesn’t affect them. As a result, the Ninth Circuit rightly denied those states the right to intervene to defend Trump’s public charge rule.

Still, I heard little appetite for what the Biden administration did here. Listen to Justice Elena Kagan:

KAGAN: The government doesn’t have to come up here and defend something that it no longer believes in. The real issue to me is the evasion of notice and comment. I also want you to assume that that is a problem and that we shouldn't be green-lighting that behavior for your administration or any other administration, all right?

Administration, consider yourself warned.

Alright, our final argument today, West Virginia v the Environmental Protection Agency.

This case asks how far can the EPA go to combat climate change by regulating greenhouse gas emissions.

As in so many disputes, it comes down to one word. Listen to Justice Stephen Breyer:

BREYER: One problem that I have is that there is a word in the statute which I think is important. It talks about a system. And so EPA has to have a system for existing plans. So what is that system? Now I -- I tend to agree with you that normally, if it's -- if you interpret the word "system" so that it totally, a hundred percent changes the opposite -- the economic system of the United States, that's a little far. It's hard to believe that Congress delegated that.

Some background is helpful.

Back in 1963, Congress enacted the Clean Air Act. EPA was to identify emissions from “stationary sources” like power plants that could endanger public health. EPA would then set some acceptable level of emissions and then let the states decide how to meet those.

A half century later the Obama administration issued the Clean Power Plan. It had guidelines for states to follow that included strategies to reduce overall emissions.

Later, the Trump administration replaced the Clean Power Plan with the Affordable Clean Energy Rule. It focused less on overall emissions and looked to reduce emissions on a plant-by-plant basis.

But a federal appeals court vacated the Trump rule as “arbitrary and capricious.”

And that is what’s appealed here. Coal industry groups and 19 Republican-led states say the Constitution doesn’t give Congress the power to delegate regulatory authority to this extent. They argue that EPA’s authority ends where the individual power plant’s fence line begins.

Lawyer for the states argued the appeals court gave EPA much broader power than permitted by law. Listen to Lindsey See and as you do, please note I’ve edited her a bit just to shorten it a little.

SEE: No tools of statutory construction support that result. First, electricity generation is a pervasive and essential aspect of modern life and squarely within the states' traditional zone. Yet, EPA can now regulate in ways that cost billions of dollars, affect thousands of businesses, and are designed to address an issue with worldwide effect. This is major policy making power under any definition….Congress did not green-light this transformative power.

U.S. Solicitor General Elizabeth Prelogar argued these states and coal companies have no standing to bring the litigation. There’s no EPA rule in effect at the moment, so that makes this about the Supreme Court issuing an advisory opinion, and that’s something the high court does not do.

Justice Brett Kavanaugh wasn’t so sure this is as cut and dry as all that.

KAVANAUGH: One thing we said is that Congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance. And the second thing we said is that the Court greets with a measure of skepticism when agencies claim to have found in a long-extant statute, an unheralded power to regulate a significant portion of the American economy.

The three liberal Justices Breyer, Kagan, and Sonia Sotomayor, seemed to favor broad authority for the EPA.

But Justice Samuel Alito cast about for any limits on what the agency could do, in this exchange with Prelogar for the government:

ALITO: Well, the statute requires EPA to take into account, just to take into account, not even balance, take into account several factors, and they are incommensurable. You know, how do you balance or take into account, what weight do you assign to, the effects on climate change, which some people believe is a matter of civilizational survival, and the costs and the effect on jobs?

PRELOGAR: So I think it's important to distinguish between that type of cost/benefit analysis, which EPA would conduct in a regulatory impact analysis under an executive order

Round and round the lawyers and justices went. They jousted over standing, agency authority, Congressional intent. They talked about interpretive tools that lawyers use, like the major questions doctrine that says only Congress can resolve disputes that involve big economic issues. Or the non-delegation doctrine that says Congress acts unconstitutionally when it delegates too much power.

I think the EPA will take a hit on the merits here, given the current alliances on the bench.

And that’s this week’s Legal Docket.

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