Mar 11 • 1HR 22M

Volts podcast: Jack Lienke & Kirti Datla on the ridiculous (but extremely important) EPA case before the Supreme Court

It is absurd from top to bottom, but its effects could be massive.

David Roberts
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Volts is a podcast about leaving fossil fuels behind. I've been reporting on and explaining clean-energy topics for almost 20 years, and I love talking to politicians, analysts, innovators, and activists about the latest progress in the world's most important fight. (Volts is entirely subscriber-supported. Sign up!)
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Last week, the US Supreme Court heard opening arguments in West Virginia v. EPA. Red states and coal companies are suing EPA, claiming that it overstepped its authority in creating the Clean Power Plan, an Obama-era policy meant to reduce carbon emissions at existing power plants. One interesting and relevant feature of the CPP is that it was never actually implemented and is not in effect.

If it seems odd to you that petitioners are claiming to be harmed by a rule that does not exist, you are not alone. The fact that the court took this case at all seems to indicate that it is eager to have a say about EPA’s authority over greenhouse gases in advance of the Biden administration writing a new rule. Climate advocates are bracing for the worst.

There are several legal questions at stake in the case, ranging from narrow issues regarding the exact interpretation of statutory text to broad issues that relate to the ability of Congress to delegate rule-making authority to administrative agencies at all.

Jack Lienke & Kirti Datla

To help me dig into the details of the case and explore its possible outcomes, I called up two experts on the subject. Jack Lienke is regulatory policy director at the Institute for Policy Integrity and an adjunct professor at the New York University School of Law, where he teaches about regulatory policy. He is a longtime expert on the Clean Air Act and co-author of a book on the subject called Struggling For Air.

Kirti Datla is the director of strategic legal advocacy at Earthjustice. Before that she was a lawyer who briefed cases before federal courts and the Supreme Court, an attorney-advisor in the Department of Justice, and a clerk for Supreme Court Associate Justice Sonia Sotomayor. She studies broader legal doctrines like jurisdiction and the scope of federal power.

Lienke, Datla, and I discuss the history of the case, whether SCOTUS should have taken it at all, the legal issues involved, and the possible rulings we might expect from the court, ranging from bad to terrible. Despite the absurdity of the situation, the conversation was a ton of fun and extremely educational.