Public Health Experts, Electric Utilities, Major Corporations, Legal Scholars, Scientists, and Current and Former Government Officials Ask Supreme Court to Reject Radical Attack on Clean Air Act

Washington, D.C. (January 26, 2022) – In new briefs filed with the Supreme Court yesterday, a diverse array of public health experts, electric utilities, major corporations, legal scholars, scientists, mayors and cities, and current and former government officials urge the Court to reject the coal industry’s radical attempt to strip the Environmental Protection Agency of its ability to enforce the Clean Air Act, limit carbon pollution and confront the climate crisis.

By contrast, no electric utilities are petitioners in this case. Instead, the so-called friend of the court filings in favor of the petitioners are a who’s who of dark money groups that have spent decades promoting pro-polluter policies and questioning or outright denying the science of climate change. 

In their briefs in support of EPA, filers demonstrate how the petitioners lack standing to pursue this case because there is no rule in effect for carbon dioxide emissions from existing power plants. Several briefs also reiterate that the Environmental Protection Agency’s mandate to regulate carbon dioxide emissions from power plants is vital to protecting public health and the environment, and to bringing innovation and stability to the U.S. economy. The electric utilities argue that blocking EPA authority would leave them exposed to federal court tort litigation. Former FERC commissioners note that there is no conflict between EPA’s authority over air pollution and FERC’s authority over wholesale electricity rates. Grid experts also argue that the U.S. power sector is already shifting toward cleaner generation and propping up uneconomic coal generation is not necessary to maintain the reliability of the grid.  Former utility executives defend the flexible, cost-effective compliance approach that EPA has long adopted using its authority under the Clean Air Act.

Prominent legal scholars caution the Court against invoking the nondelegation doctrine or judge-made “major questions” doctrine in order to override EPA’s clear statutory authority and regulatory approach. And one of the nation’s foremost experts on the drafting, history, and implementation of the Clean Air Act explains how and why Congress granted EPA significant rulemaking authority to implement the Act’s directive to protect public health and welfare, which the Supreme Court has repeatedly affirmed requires EPA to regulate carbon emissions.

Amici filing with the Court include:

• Electric Utilities and Utility Industry Experts
  • Edison Electric Institute
  • Electrical grid experts
  • Former power industry executives
  • Former FERC commissioners
• Major Corporations 
  • Apple, Amazon, Cummins, Danone, Google, Johnson Controls, Levi Strauss, Meta Platforms, Microsoft, Netflix, Paypal, Salesforce, Siemens, Tesla, and Workday
• Climate Scientists and Environmental Experts
  • Climate scientists Michael Oppenheimer, Noah Diffenbaugh, Christopher Field, Stephen Pacala, Daniel Schrag, and Susan Solomon
  • National Parks Conservation Association
• Medical and Public Health Experts
  • American Thoracic Society, American Medical Association, American Academy of Pediatrics, American College of Physicians, and Leaders of Public Health Schools
• Legal Scholars and Clean Air Act Experts
  • Professor Julian Mortenson, University of Michigan Law School
  • Professor Richard Revesz, NYU School of Law
  • Thomas Jorling, a leading expert on the drafting, implementation, and evolution of the Clean Air Act
• Cities and Mayors
  • National League of Cities and U.S. Conference of Mayors
• Current and Former Government Officials
  • 192 Members of Congress
  • Sens. Sheldon Whitehouse, Richard Blumenthal, Elizabeth Warren, and Bernie Sanders
• Advocacy Organizations
  • Public Citizen

Additionally, the groups urge the Court to reject the radical reinterpretation of the “major questions” doctrine advocated for by coal executives and their political allies. These extremists are pushing the Court to use this case to undermine the federal government’s ability to carry out vital Congressional directives, including the federal government’s ability to investigate fraud, ensure the safety of food and drugs, and punish exploitative employers.

The coal companies and their allies behind this case want to prevent the EPA from limiting carbon pollution, and are attempting to thwart the fight against climate change. If they succeed, the coal companies would move the United States back toward the pre-1970s' era, when few pollution controls existed before the Clean Air Act was signed into law. 

There is strong legal support for the EPA’s authority to regulate power sector pollution in order to protect clean air and public health. The EPA’s authority and responsibility to act is consistent with the Constitution, the Clean Air Act and the Supreme Court’s decisions in Massachusetts v. EPA and American Electric Power v. Connecticut. 

Additional Resources 

• Filings in the case can be found here.
• EDF blog post: An Attack On Hypothetical Climate Pollution Safeguards Lands At The Supreme Court. EDF Will Fight To Protect Climate Action.
• Press release: Leading Environmental Groups and Trade Associations Ask Supreme Court to Reject Attack on the Clean Air Act.
• Sierra Club blog post: Sierra Club and Partners File Brief in High Stakes West Va v. EPA Case.
• NRDC blog post:  What’s at Stake in the Latest SCOTUS Power Plant Cases.
• EDF blog post: Safeguarding EPA’s Authority at the Supreme Court is a Climate Imperative.
• Sierra Club blog post: Coal Companies and their Political Allies Attack Agency Authority in Supreme Court Briefs.

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