The Courts Could Overhaul Energy Law

Federal courts are expected to address the role of climate in oil, gas and power rules.

According to E&E News, in February, the nation’s highest bench will consider the scope of EPA’s authority to regulate carbon emissions from power plants. In the lower courts, judges will consider whether the Interior Department can suspend new oil and gas leasing on federal lands and how the federal government can incorporate emissions cost estimates into regulatory decision making.

Some of the cases will be heard by conservative judges who may be interested in blocking the Biden administration from achieving its ambitious climate goal of slashing emissions by about 50 percent from 2005 levels by 2030.

“I think that there’s some concern within the advocacy community about the makeup of the courts and how those bedrock principles of administrative law stand up in the face of judges … who are fundamentally skeptical of the administrative state,” said Michael Burger, the executive director of Columbia University’s Sabin Center for Climate Change Law.

This year’s court rulings could also provide answers to long-percolating questions about how federal judges will address regulatory uncertainty as rules change from one administration to the next.

“These are some of the most fundamental, quasi-constitutional issues of modern administration,” said Adam White, co-executive director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State. “Ultimately, I think that’s what these cases might well be remembered for after they’re decided.”

Legal experts said the Biden administration is likely drafting proposed environmental rules that can endure review by a Supreme Court with a 6-3 conservative majority.

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