Clean Water Current

NACWA this week joined the Edison Electric Institute (EEI) on an amicus brief to the U.S. Supreme Court in the ongoing litigation over EPA’s regulation of greenhouse gasses (GHGs) under Section 111(d) of the Clean Air Act (CAA).  EEI represents U.S. investor-owned electric utilities.

At issue in the case, West Virginia v. EPA, is the question of whether EPA acted outside of its statutory authority when it effectively mandated fuel switching at existing power plants as opposed to just imposing traditional on-site pollution control technology requirements (the so-called “regulating outside of the fence line” question) under the Obama administration’s “Clean Power Plan” (CPP). 

Notably, however, the CPP was never implemented, and several of the parties challenging the rule are asking the Supreme Court to issue a decision addressing far broader issues than whether the CPP constituted a reasonable interpretation of Section 111(d).  Specifically, the challengers have put forth interpretations of two legal doctrines – the nondelegation and major questions doctrines – that could, if adopted, strip EPA of its authority to regulate GHGs entirely.

NACWA and EEI’s brief explains that any decision completely removing EPA’s authority to regulate GHG emissions under CAA Section 111(d) would revive federal common law lawsuits against GHG emitters currently displaced by the CAA.  In doing so, the brief notes, the Court would subject the power industry and clean water utilities to a multiplicity of tort suits, thereby allowing myriad litigants, instead of Congress, States and EPA, to dictate GHG-emission reduction requirements.  

The brief also notes that reopening the potential for climate tort litigation and increasing the cost of electricity would divert public funds from critical infrastructure projects designed to improve human health and the environment and increase costs to communities served by clean water utilities that can least afford to bear them. 

Moreover, the brief draws the Court’s attention to the fact that application of the doctrines underlying the arguments in the current case could have far-reaching impacts on other statutes, including the Clean Water Act, which, like the CAA, also displaces certain federal common law tort claims against clean water utilities.   

NACWA and EEI ask the Court to avoid such consequences by utilizing traditional statutory construction tools to appropriately delineate EPA’s regulatory authority under the CAA without completely stripping the Agency of its authority to regulate GHGs.

Other groups, including the National League of Cities and the U.S. Conference of Mayors, also submitted amicus briefs in support of EPA.  The Supreme Court will hear oral argument in the case on Feb. 28. 

NACWA will continue to keep members apprised of important developments in the litigation.  Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.