Volts podcast: Jay Duffy on the Supreme Court's EPA decision

In this episode, lawyer Jay Duffy, who represented environmental groups in West Virginia v. Environmental Protection Agency, explains the ins and outs and potential implications of the Supreme Court’s final ruling in the case.

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Text transcript:

David Roberts

On June 30th, the Supreme Court handed down a ruling in the case of West Virginia v. Environmental Protection Agency. There was a great deal of dread in the climate community in advance of the ruling, and a great deal of hyperbolic coverage in its wake. But what did it actually say?

Volts listeners will already be familiar with the case thanks to a pod I did on it a few months ago with Jack Lienke and Kirti Datla, and they will recall that it was somewhat bizarre for the court to take this case at all, since it regards a set of regulations that never were and never will be put into effect. Rather, the court seemed eager to pass judgment on the legal justification that it anticipates EPA might use when regulating greenhouse gases under Biden. It was, in other words, an advisory opinion, which the Supreme Court is not supposed to do.

Nonetheless, it took the case and now it has ruled. The headline is that the majority opinion is not as bad as many anticipated, especially in the wake of the unhinged Dobbs decision that overturned Roe v. Wade. This was a Chief Justice Roberts special, carefully parsed and hedged.

To get clear on what the ruling does and doesn't actually say, I contacted one of the lawyers on the case, Jay Duffy of the Clean Air Task Force. Duffy was responsible for several of the key briefs and arguments in the case, so I thought he would have a good read, not only on what the Roberts decision says, but what it portends for subsequent cases.

So, without further ado, Jay Duffy, welcome to Volts. Thanks for coming.

Jay Duffy

Thanks so much, David. It's a pleasure to be here. Thank you for asking me to come on.

David Roberts

Let's start just really briefly, tell us about your involvement in the case.

Jay Duffy

Sure. So I represent a number of environmental and public health groups. American Lung Association, American Public Health Association, Appalachian Mountain Club, Cleaner Council, Clean Wisconsin, Conservative ... "Conservative no", Conservation Law Foundation, and Minnesota Center for Environmental Advocacy. We challenged the ACE rule in the CPP repeal when it came out in the DC Circuit. I argued a portion of that oral argument on a nine hour zoom call. Yeah, I hope this pod won't be as painful as that was. We won below, and then that was, of course, appealed by State Attorney General and coal interest, and I continued to represent the same clients before the Supreme Court.

David Roberts

So at a headline level, everybody saw the Dobbs ruling, which was a Sam Alito special, i.e. completely unbound, and unrestrained, and deranged, and I think were subsequently filled with fear about this ruling. But this is a Roberts decision, not an Alito decision. And it seems to bear the sort of typical characteristics of a Roberts decision, in that it is sort of a little bit of this, a little bit of that, kind of trying to cut it down the middle, not quite dramatic, slightly more technical, slightly more narrow. So am I right in thinking that in the spectrum of outcomes that climate people anticipated or imagined, this is toward the better side?

Right. This is one of the better outcomes we could have envisioned. Is that roughly right?

Jay Duffy

That's roughly right. I think there are two kind of lanes in this decision. There is what is the path forward for regulating greenhouse gases from power plants? And I think there is still a lane there. And we were concerned that we would have a roadblock on the major questions, doctrine expansion, that piece is more troubling and I think we could probably get into that. But I do think, even though the Roberts opinion kind of throws shade on multiple pathways forward, at the end, he says, "this is just a narrow opinion. All we're saying is that the Clean Power Plan and the system underlying the Clean Power Plan is outside of EPA's authority."

David Roberts

Right? So they didn't nuke Mass vs. EPA. They didn't take away EPA's ability to address CO2. They didn't try to mess with the endangerment finding whereby EPA found that CO2 is a danger. There's a lot of bigger things they could have done that they didn't do. And we'll get into later sort of where we think they're going from here. Let's talk about then what Roberts did say. And when I first was reading about this, I thought that Roberts was focusing on the sort of inside the fence-line versus outside the fence-line question, which for listeners who don't have the background on this, the question is, if you're regulating coal plants, do you have to confine your regulations to the coal plant itself?

Or in some sense, can you regulate the fleet, or can you do what the Clean Power Plan did, which is regulate the entire electricity fleet, not just coal plants? But that's not quite right. He specifically didn't speak on the inside versus outside the fence-line question. It sounds like all he did is just say whatever regulations you pass on coal plants, they cannot require utilities to shift generation to non-coal plants, i.e. generation shifting. Is that all he said? Is that it?

Jay Duffy

Well, and he also didn't say that ... The interesting thing about this section 111 of the Clean Air Act, which is what we're under right now, is EPA doesn't actually require any sort of pollution control. What it does is come up with, okay, what's the best system of pollution control out there? Comes up with a standard, and then it's up to the states to then set standards for their individual power plants that they comply with in any way they see fit.

David Roberts

Right.

Jay Duffy

So in this ruling, it does seem like even complying with generation shifting is still on the table, you could have a rule based on cofiring, or CCS, or some other quote unquote inside the fence-line measure. It seems like the pathway forward could still be an individual plant deciding to shift generation.

David Roberts

Right. So I think, as I understand it, what he said was when EPA is contemplating output standards for coal plants, it cannot take generation shifting into account when setting the standard.

Jay Duffy

Right, that's exactly right.

David Roberts

It has to set the standard based on inside the fence-line options like cofiring, like CCS, things like that. But in complying with that standard, the state can still use generation shifting. That's right?

Jay Duffy

I think so. I mean, there is a lot of ambiguity in this opinion. I think we'll be parsing through it for a while. I mean, as I said at the end, Roberts kind of says, "hey, even though I just said a lot of stuff negative about cap-and-trade, and I've said some other things about fuel switching, et cetera, I'm not ruling