Limiting the power of an agency

NICK EICHER, HOST: Coming up next on The World and Everything in It: the coal industry.

The EPA wants to shut down coal for good, but the Supreme Court just limited the power of the EPA to make sweeping changes without permission from Congress.

MARY REICHARD, HOST: Joining us today, a new voice at WORLD. Leo Briceno started as a reporter in WORLD’s Washington Bureau on July 1. Welcome, Leo!

LEO BRICENO: Thanks, Mary, I’m so glad to be here.

REICHARD: Well, you covered the Supreme Court’s decision in West Virginia v. the Environmental Protection Agency. Tell us what this case is about?

BRICENO: Yeah, well, it's about a lot. But this case originally started out as a question of energy regulation, who gets to make energy, how they get to make it. But its impact is actually primarily one about the scope of federal agencies and the amount of power they have to control swathes of the American industry.

REICHARD: And how did this case start?

BRICENO: So back in 2015, the EPA, or the Environmental Protection Agency adopted something called the Clean Power Plan. This was a regulation that, among other things, would have essentially forced coal power production out of operation. And the way they did that was by imposing impossibly high emission standards. In last week's decision, the Supreme Court said that well, this was a little too far for a regulatory agency. Chief Justice Roberts, in his majority opinion said that that was a job for Congress. He said, essentially, look, EPA, we gave you the power to regulate specific types of technologies to help them make them more efficient to help them prevent the amount of emissions they produce, not to just remove them entirely. Whenever you, you know, feel like that's necessary decision to make. And Justice Kagan, in her dissenting opinion, disagreed, saying, Well, yes, the EPA, the Environmental Protection Agency did actually have the authority to regulate the industry to that, to that degree, and therefore the agency hadn't stepped out of the bounds of what the power had been given by Congress.

REICHARD: Why did the EPA want to impose these regulations on coal power producers?

BRICENO: That's a big picture question. In 1970, Congress instructed the EPA to figure out the best practices in order to reduce pollution, there's something called the Clean Air Act. Under that mandate, the EPA was instructed to go out and find technologies that could be applied standard practices that can be applied in order to bring co2 emissions down. Coal actually makes more co2 emissions than just about any other power source that we use other sources like gasoline, natural gas, diesel, because of that, the EPA said okay, well, this source of power produces a lot of co2, instead of trying to make it cleaner, we should just replace it entirely, swap it out, get rid of it. Part of the reason the EPA arrived at that conclusion was because coal has been on a downward trajectory for well over a decade, the US has gone from consuming about a million 1000 short tons to about half that transitioning the country to other forms of energy, like natural gas. The EPA argued that the regulations that they had put in place, hadn't really forced the industry to change at all. Instead, they just kind of reinforced a trajectory that was already in place. But instead of actually imposing that regulation and mandating that change, almost as soon as it was announced, it was kind of stopped dead in its tracks, because it received a number of legal challenges, one of which ended up in front of the Supreme Court.

REICHARD: Leo, what would have been the effect if the regulation had been put in place?

BRICENO:Well, it definitely would have done what you kind of see today, which is a reduction in the amount of coal used, maybe a little bit more quickly, maybe a little more forcefully than it would have otherwise happened. But in her dissenting opinion, Justice Elena Kagan said the regulation would have more or less mirrored the trajectory of today's energy market. She says that it would have, quote, little to no change. But in some ways, that's kind of you know, besides the point, the regulation would have gone beyond what Congress specifically said it could do, and it did so in a way that would change the way Americans produce and consume energy. So the court found the change was a little too big for the EPA to dictate, even if it did, mirror the way the market would ultimately go.

REICHARD: Why are environmentalists upset about the decision?

BRICENO: Well, because it's difficult for change that the EPA wanted to mandate to come from Congress. The Supreme Court's decision essentially forces regulatory agents is to display that they have a specific mandate from Congress in order to make a substantive change to the industry. That means that Congress will have to be involved in some way, shape or form, if the EPA gets to do something like this, in other words, they have to receive specific authority from Congress or Congress has to pass a piece of regulation, empowering the EPA to do just that. But with the sharp congressional divide on the matter of the environment and on the matter of coal, that's really unlikely to happen. Many environmentalists look to the EPA as regulation as a way to bypass or to go around Congress entirely. The Supreme Court's ruling makes that very unlikely to happen.

REICHARD: Leo Briceno is a reporter with WORLD’s Washington bureau. Thanks, Leo!

BRICENO: Of course, thanks for having me.

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