Morrisey celebrates U.S. Supreme Court taking up challenge to EPA power

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Nov. 3—MORGANTOWN — Attorney General Patrick Morrisey met with members of the West Virginia press on Tuesday to celebrate a Friday decision by the U.S. Supreme Court to hear a petition, led by Morrisey, challenging the extent of the authority of the U.S. EPA.

The case is called West Virginia v EPA and 19 other states (one more joined since Friday) have joined with Morrisey, he said Tuesday.

The case stems from a 27-state case led by Morrisey against the Obama-era Clean Power Plan, which resulted in a stay of the plan by the Supreme Court in 2016. In 2019, the Trump EPA replaced it with the Affordable Clean Energy Rule, which established emissions guidelines for states to use when developing plans to limit carbon dioxide at their coal-fired power plants. States would have three years to submit plans, in line with other planning timelines under the Clean Air Act.

But in January of this year, the U.S. Court of Appeals for the District of Columbia Circuit vacated the 2019 Affordable Clean Energy Rule.

In the current petition, Morrisey and the other states say the D.C. Court wrongly used a portion of the Clean Air Act to grant the EPA even more sweeping powers.

The petition comes in the form of a question to the Supreme Court: "In 42 U.S.C. § 7411 (d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation's electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements ?"

Morrisey said Tuesday that the D.C. Court's ruling could give EPA authority to decarbonize power plants, factories, buildings, even homes that heat with gas. "This is a wildly expansive, unlawful and unconstitutional view of federal agency power."

Morrisey said they will submit briefs in February and will probably argue the case that month. They could expect a decision by June.

"The stakes are certainly are very high, " he said. "Congress never gave EPA a blank check to address climate change." States are entitled to a place at the table with Congress when fundamental and transformative policies are at stake.

Morrisey said the Supreme Court and the petitioners will be subject to criticism but they aren't monsters out to destroy the planet. The problem is that the D.C. Court ruling doesn't respect the role of Congress and the Constitution.

Morrisey cited a quote by late Supreme Court Justice Antonin Scalia: "When an agency claims to discover in a long extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement a measure of skepticism." They expect Congress to speak clearly when it wants to hand such vast power to an agency.

"That's why we should win this case, " he said. Under the Biden climate agenda, "We're worried that there could be a cataclysmic effect on West Virginia."

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