Cert Granted in Greenhouse Gas Cases

January 14, 2022
Shoshana (Suzanne Ilene) Schiller, Esq.
MGKF Special Alert - Federal Forecast 2022

In late October of last year, the Supreme Court agreed to hear appeals in four cases regarding the Environmental Protection Agency’s authority to regulate greenhouse gases.   In 2015, under Section 111(d) of the Clean Air Act, the EPA issued a final Rule, known at the Clean Power Plan (the “CPP”), which provided guidelines for states to regulate carbon dioxide emissions from certain sources.  The Rule was immediately challenged, but before those challenges were decided, and following Trump’s election, the EPA repealed the CPP and replaced it with the Affordable Clean Energy Rule (the “ACE Rule”).  Like its predecessor, the ACE Rule was immediately challenged in the D.C. Circuit Court, which vacated both the repeal of the CPP and the ACE Rule.  The CPP was not immediately reinstated however, as the Biden Administration is developing its own plan for tackling greenhouse gasses.  Nevertheless, the Petitions for Certiorari that the Supreme Court granted, filed by West Virginia, North Dakota, the North American Coal Corporation, and Westmoreland Mining Holdings LLC, argue that Section 111(d) of the Clean Air Act does not give EPA the authority to pass a Rule as extensive as the CPP.  A ruling from the Supreme Court is expected in the summer of 2022.  

Pending Petitions 
There are still a few Cert Petitions dealing with environmental matters that the Court has yet to act on but should be addressed before the end of the current term.   

  • Discussed elsewhere in this Forecast, the Court has requested the view of the Solicitor General in connection with a Petition filed by Bayer arguing that state-law failure-to-warn claims based upon injuries alleged caused by pesticides are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act.
  • In September, a Petition was filed in the long-running action by the Sacketts asking the Supreme Court to hold that the Clean Water Act only regulates wetlands that have a continuous surface water connection to regulated waters. Given that the Biden administration has recently proposed a new Rule with respect to defining Waters of the U.S., discussed elsewhere in this Forecast, it is unlikely that the Court will grant the Sackett’s petition.  
  • In November, in an action against the owners and operators of a landfill in Missouri, a Petition was filed seeking a decision on the application of the “local controversy” exception to the Class Action Fairness Act where only one of several defendants is a local entity.