Paul Seby on Representing North Dakota in SCOTUS EPA Ruling

On June 30 the U.S. Supreme Court ruled that the Environmental Protection Agency can’t require states to change their energy portfolio under the Clean Power Plan as a way of implementing emissions caps. 

The opinion was the court’s second to last of the session and has attracted criticism as well as concerns that it has set the U.S. back in efforts to combat climate change. 

According to Paul Seby, a Greenberg Traurig shareholder who represented North Dakota, one of the petitioners in the case, the ruling has a more nuanced place in conversations around implementing national climate change policy. 

North Dakota was one of 18 states that asked the Supreme Court to look at rules created by the EPA in the Clean Power Plan, which was first rolled out in 2015 under the Obama administration. Seby, who has extensive experience in environment and natural resources and appellate law, was brought in as special assistant attorney general to represent North Dakota on the case. Over the course of his career, Seby has worked on many federal environmental regulation matters, especially around the Clean Air Act and air quality issues. The appeal brought by North Dakota and other states, he explained, asked the Supreme Court to consider the authority of the EPA to implement the CPP. 

A 6-3 majority of the U.S. Supreme Court ruled that the case fell under the major questions doctrine and that EPA didn’t have the explicit authority from Congress to require states to implement new sources of power. 

Since it was first created, the CPP has been repealed, replaced, reinstated and wound up in the courts multiple times, primarily over questions about the EPA‘s authority to require states to shift their energy portfolios. 

In order to address carbon dioxide emissions, the CPP tasked states with three things: implement practices to burn coal more efficiently, shift existing coal-fired power plants to natural gas-fired plants and shift coal and gas plants to renewable power sources. The final two provisions of the CPP were generation shifting tasks that would require a state-wide sector shift in electricity production. The EPA also determined the degree that states would need to shift their energy portfolios based on a series of models weighing costs and feasibility. The EPA in 2015 cited a provision of the Clean Air Act, the New Source Performance Standards program, to back up the CPP, which allows the agency to regulate certain emissions from existing energy sources. 

For a state like North Dakota, Seby Said, which produced about half of its energy through coal in 2015, complying with the CPP would’ve been costly. 

The CPP never went into effect after the U.S. Supreme Court stayed it in 2016 and the rule was repealed after former President Donald Trump came into office in 2017. In repealing the CPP, the EPA found the rule exceeded its statutory authority. The agency released a replacement rule, the Affordable Clean Energy, in 2019 and cited a different section of the Clean Air Act to support its authority to cap emissions of coal-fired plants. Multiple states challenged the repeal and replacement of the CPP in the D.C. Circuit Court which found the EPA’s reading of the Clean Air Act was flawed. A handful of other states, including North Dakota, joined the case on the other side and asked the D.C. Circuit to consider the statutory authority of the EPA to roll out the CPP. The federal circuit vacated the repeal of the CPP and the implementation of the ACE. 

In 2020, the newly-elected Biden administration’s EPA asked the D.C. Circuit to hold off on its mandate of the CPP while it considered if it should implement a new rule which would also rely on the Clean Air Act’s New Source Performance Standards program. The court granted the motion, but North Dakota and other petitioners asked the Supreme Court to consider the EPA’s authority to implement the energy changes of the CPP. 

Appealing to the U.S. Supreme Court, Seby said, North Dakota wanted the court to consider questions over the sovereignty of the states and the EPA. While North Dakota agreed that under the Clean Air Act, the EPA had the power to set standards, it believed that CPP took away the state’s role to choose what changes to existing power sources, like coal plants, look like on the ground.

Writing for the court, Chief Justice John Roberts explained that while the Clean Air Act, which was first passed in 1967 and amended in the 1970s, authorizes the EPA to act as the primary regulator and set standards around emissions, states are authorized to create rules for existing power plants which meet EPA standards. 

The CPP, Roberts wrote, took away the authority of states to create individual plans to curb emissions in line with federal standards, handing that power to the EPA. Without any “clear congressional authorization” to direct specific state-level changes to energy portfolios, the EPA was in violation of the major questions doctrine, the majority found. 

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” wrote Roberts. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” Roberts was joined by Justice Clarence Thomas, Justice Brett Kavanaugh and Justice Amy Coney Barrett. Justice Neil Gorsuch, joined by Justice Samuel Alito, wrote a separate concurrence to “offer some additional observations” about the major questions doctrine. 

Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, dissented. The minority underlined the gravity of climate change and wrote that the court’s decision took Congressionally-delegated power from the EPA to respond to climate change. 

According to the dissent, regulating fossil fuel power plants fits squarely in the Clean Air Act which tasks the EPA with regulating sources of any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” While the Clean Air Act never explicitly mentions new sources of power, according to the dissenting justices, the EPA is authorized with finding the best system of emissions reduction. 

“The ‘best system’ full stop—no ifs, ands or buts of any kind relevant here,” wrote Kagan, adding that she couldn’t find any other provisions that seemed to limit what type of best system of emission reduction the EPA could determine. 

Kagan also critiqued granting certiorari review to the appeal in the first place. While she agreed that the case wasn’t moot, she added that since the CPP was not in effect, granting review was discretionary. “The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. That new rule will be subject anyway to immediate, pre-enforcement judicial review,” wrote Kagan. “But this Court could not wait—even to see what the new rule says—to constrain EPA’s efforts to address climate change.”

The dissenting justices aren’t the only critics of the Supreme Court’s decision. Since the ruling came down, both the public and elected officials have criticized the ruling amid one of the most controversial Supreme Court terms in recent history. 

In Seby’s view, the EPA ruling won’t take away the teeth of the government’s administrative agencies, despite many public criticisms that the ruling could cut the power of federal agencies. 

“They just said that what EPA sought to do was massive and we expect an agency to have a clear mandate if Congress intends for it to have such a substantial, major power,” he said. “So what the Court did was really not that dramatic. They got the right result, I believe obviously, but they said [the] EPA as an agency is a creature of statute. It does what Congress gives it the authority to do and it cannot deal with what Congress did not tell it was within its authority.”

As for how this decision fits into larger questions about climate change and U.S. policy to curb its effects, Seby agrees that national climate change policies are needed, but they need to be led by Congress rather than federal administrative agencies. 

“Everybody’s got a hand in it,” said Seby. “And there’s a lot of hands that caused the problem that aren’t in the game, and they need to be in the game. But we’re not going to give the agencies, just because it sounds like it’s a helpful tool, the authority to make massive changes in how Americans get their electricity.” 

He added that the CPP has been in and out of federal courts since it was first implemented two presidential administrations ago and lawmakers haven’t made much headway on national climate change policy during that time. 

“My criticism of this case is that it’s diverted everybody’s attention and focus away from doing things that can and should be done. We’ve lost nearly a decade and it’s been a lost decade because Congress hasn’t been pressed to do more,” said Seby. 

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