The Energy, Environment & Land Use Program (EELU) hosted a faculty panel earlier this month to discuss the future of environmental law following the 2023 Supreme Court term and offer insights on the intersection of law and climate change.
Moderated by EELU Program Director Caroline Cox, the panel featured EELU Co-Directors Michael P. Vandenbergh and J.B. Ruhl, along with Jim Rossi. Panelists discussed three recent Supreme Court cases with major implications for environmental law and beyond.
The Impact of Loper-Bright
Cox provided an overview of Loper-Bright Enterprises v. Raimondo, which overruled the principle of Chevron, “meaning the agency’s interpretations of ambiguous statutory language will no longer receive judicial deference.”
She asked Rossi, an expert in energy and administrative law, to explain what the Supreme Court’s decisions could mean for the Federal Energy Regulatory Commission (FERC) and the energy transition.
“I don’t think Loper-Bright necessarily changes anything radical,” Rossi said. “Though, to an extent, it does invite an opportunity for more judicial challenges.”
Rossi then explained Loper-Bright’s potential implications on a case concerning the Public Utility Regulatory Policies Act of 1978 (PURPA). According to PURPA, power plants are allowed a maximum capacity of 50 megawatts. However, a hybrid power plant, which relied heavily on solar panels, had a capacity of 80 megawatts. The plant argued that the intermittent nature of solar energy meant that the plant never reached 80 megawatts.
The case was deferred by a DC circuit court, but because a decision was still pending when the Loper-Bright ruling that eliminated deference was released, the case was sent back to the court.
Rossi also discussed whether the Federal Energy Regulatory Commission, under the Natural Gas Act, would now be able to deny the construction of a pipeline due to downstream effects out of the firm’s control — such as environmental impacts and carbon-intense impacts. With the new developments from Loper-Bright, courts may no longer be able to defer issues to agency discretion.
Vandenbergh added that the decision may have partisan implications. He noted that the Supreme Court’s Major Questions Doctrine has only ever been used to shrink government responses to social problems. By that logic, Vandenbergh reasoned that deference as a practice would be discontinued.
He also pointed out how Rossi’s exchange demonstrated the convergence of energy and environment laws as a result of the rulings. Vandenbergh used this as an opportunity to explain how EELU members might become more adaptable through diverse perspectives.
“Recognize that if you get the chance to take advantage of various ranges of education, you can take the evolutionary strategy of being broadly diversified so that you can adapt when the time comes,” Vandenbergh said.
The Impact of Jarkesy and Corner Post on the Environmental Protection Agency
SEC v. Jarkesy, a case brought forth by a hedge fund manager, argued that proceedings brought against him by the SEC violated his Seventh Amendment right to a trial by jury. The Court ruled that the Securities and Exchange Commission violated the Seventh Amendment.
Vandenbergh explained the ramifications of Jarkesy in respect to regulation enforcement. While Vandenbergh was the chief of staff for the Environmental Protection Agency (EPA), the majority of the penalties the agency issued did not have to be defended by the Department of Justice in a federal court,. because they were administrative proceedings. Vandenbergh noted that, with Jarkesy, such a process would no longer exist. Every case would have to be defended before a court — something the DOJ will not have the bandwidth to do.
In Corner Post v. Board of Governors of the Federal Reserve System, the Supreme Court overruled another court’s decision regarding the expiration of the statute of limitations for judicial review of federal agency rulemaking.
Vandenbergh said that the decision could lead to agencies like the EPA seeing huge increases in the volume of cases against them as new companies begin to challenge decades-old regulations that obstruct them.
The Limitations of the National Environmental Policy Act
Cox then asked Ruhl, an expert in climate change governance, to explain how older laws like the National Environmental Policy Act (NEPA) might actually be hindering progress on climate change.
Ruhl began by dividing climate change governance into two buckets: Mitigation and climate change adaptation.
“[Mitigation] is largely what we would call the decarbonization missions,” Ruhl said. “It’s largely decarbonizing our electric sector and also about building carbon sinks. The other big bucket is climate change adaptation — adapting to the index of climate change can prevent it.”
According to Ruhl, climate change prevention requires an “unprecedented, massive amount of new infrastructure.” This infrastructure is made difficult due to environmental laws like NEPA that were originally meant to oppose brown infrastructure — pipelines, highways etc.
“The problem is this massive decarbonization and adaptation infrastructure we now need … In general, it doesn’t get a green pass,” said Ruhl.
Vandenbergh asked Ruhl what NEPA’s experiences at the Supreme Court have been like. Ruhl answered that NEPA had been shrunk every time it had been brought in front of the Supreme Court.
