Following the implementation of new stringent pollution control measures by America’s chief agency for environmental regulation, legal confrontations from fossil fuel organisations and Republican states are expected. The Environmental Protection Agency declared two new protocols this week with the aim of curbing toxic emissions from chemical factories and purging cancer-causing substances from drinking water. This is a part of the Biden administration’s efforts to push forward its climatic policy before the Presidential election in November. Experts believe these rules are about to be hit with impending legal backlashes from corporations and Republican states, alleging that these measures overstep federal constitutional authority. Moreover, the conservative supreme court might favour their allegations.
“As the court is now the most conservative it’s been in nearly a hundred years, conservative legal activists are emboldened to make claims that would have been considered ludicrous just a few years past,” stated Sam Sankar, a solicitor with Earthjustice, a body dealing in environmental law. “A significant change has occurred in the legal landscape.”
The election is triggering a frenzy of lawsuits as Republican states hasten to unleash challenges. Republican attorneys general from 24 states, including Alabama, Kentucky, and West Virginia, filed a lawsuit against the EPA last month for trying to roll back rules that limit air pollution and methane leaks from the petroleum and gas industry. There were another 16 red states, including Texas, Louisiana and Florida, who sued the federal government over holding back approval for new export terminals for liquefied natural gas along America’s shoreline.
In December, eleven states had sued the EPA for granting tribal communities veto power over new energy initiatives. However, their request for a provisional injunction was turned down by a federal judge last month. Simultaneously, a litigation spearheaded by West Virginia and supported by ten red states against the Securities and Exchange Commission is ongoing because of regulations mandating companies reveal some of their greenhouse gas emissions.
“This trend has been going on for a while, but the intensity is ramping up,” stated David Doniger, a former EPA official, on the subject of lawsuits. “It now appears they have a lawsuit for every case.”
These legal battles are part of a wider dispute involving US government entities responsible for setting and executing regulations for businesses and industries, and the judiciary branch.
Legal campaigners have gained inspiration from a landmark judgement in 2022, West Virginia v EPA, where the agency had its capacity to restrict greenhouse gas emissions from power stations restricted by the Supreme Court. The court concluded that the EPA was not explicitly given permission by Congress to utilise its powers in the way it intended.
There’s another case in progress, Relentless Inc v Department of Commerce, aiming to overthrow a four-decade-old legal concept that dictates that courts should typically defer to agencies’ interpretations of laws framed by Congress.
Jonathan Adler, a teacher of environmental law at Case Western Reserve University School of Law, believes that the current legal attack is partially due to the fact that the Biden administration has enacted more climate rules compared to its predecessors. Adler stated that the introduction of such rules to further the administration’s agenda has exposed a “legal vulnerability”, given the absence of specific Congressional authorisation for “meaningful climate regulation”. He added that climate change regulation is applied to greenhouse gases using rules designed for other applications.
Drawing an analogy, he mentioned that the Supreme Court has shown its scepticism towards applying new interpretations to outdated provisions, especially in environmental law where most regulations are outdated. This legal vulnerability has drawn the attention of State attorneys general, who are typically elected officials throughout the States.
Patrick Morrisey, attorney general for West Virginia, commented after filing a case with others, including Alabama and Georgia, that Federal agencies, specifically the SEC, must conform to the statutory mandate bestowed upon them by Congress and refrain from controlling private entities to further progressive policy.
However, critics argue that the stance taken by some attorneys general is overtly political. Morrissey, a member of the Republican party, is actively campaigning to become the next governor of West Virginia. Others, too, are using their opposition to President Joe Biden’s climate plans to increase their local prominence.
Cynthia Hanawalt, a director at the Sabin Center for Climate Change Law at Columbia Law School, said the recent avalanche of legal objections against climate regulations should be partially considered from a political perspective. Hanawalt suggested that the fact that several states declared their intent to sue even before seeing the SEC’s climate disclosures proposal indicates an agenda beyond the rule specifics.
The Securities and Exchange Commission (SEC) has currently paused its rule making, awaiting assesssment from a US appellate court. This court is deliberating on legal issues presented by the Republican state attorneys-general and others.
Doniger noted that the Republican attorneys general might not consistently emerge victorious. Still, they were filing more conjectural lawsuits. According to him, the upcoming years would determine whether these audacious and radical cases would flourish or flounder. – Copyright The Financial Times Limited 2024.