News | Headlines
Supreme Court curtails EPA’s authority to regulate emissions
USA Emissions abatement On June 30 the US Supreme Court issued a landmark decision in ‘West Virginia v EPA’. In a 6-3 opinion written by Justice Roberts, the Court held that Congress did not give the US Environmental Protection Agency the authority under Section 111 of the Clean Air Act to set emission standards for existing power plants that prescribe the market share of certain types of power generation. The following is extracted from analysis produced by Van Ness Feldman.
The Court reversed the DC Circuit ruling that struck down the Trump-era Affordable Clean Energy (ACE) Rule, which repealed the Obama-era Clean Power Plan and replaced it with more limited regulations of CO2
emissions from existing power plants.
The Court applied the ‘Major Questions Doctrine,’ which applies a more sceptical review when an agency discovers in a ‘long-extant statute an unheralded power’ representing a ‘transformative expansion in its regulatory authority’ with substantial national impacts. Essentially, this is intended as a safeguard against unintended consequences of earlier legislation. In such cases, the Court has held, a general delegation of authority may
not be enough; rather, the agency’s action must be supported by clear statutory authorisation.
The majority opinion states:
‘Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day”’ (quoting New York v United States, 1992). ‘But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from [Congress].’ A dissent, written by Justice Kagan, argues that with the decision the Court ‘appoints itself – instead of Congress or the expert agency – the decision maker on climate policy.’ The Court remanded the case for further proceedings consistent with the opinion. Given that the Court’s opinion reversed the decision by the DC Circuit regarding the ACE Rule, the question is whether that rule now springs back to life. At a minimum, EPA will need to address this question through an administrative process, for example a stay or a rulemaking, while the Agency continues work on a
replacement rule for the CPP and the ACE Rule consistent with the Court’s opinion. The EPA is expected to issue its proposed rule under Clean Air Act section 111(d) in March 2023 and will likely finalise the regulation in 2024. The West Virginia decision will force the Biden administration to approach its development of regulations to implement greenhouse gas controls for power plants more narrowly than the Clean Power Plan. Importantly, if EPA is constrained in what the replacement for CPP and ACE can achieve with regard to GHG reductions. This may mean that the power sector will see the Agency targeting more stringent regulation of non-greenhouse gas pollutants – such as NOx, particulate matter, and hazardous air pollutants – which could achieve climate mitigation co-benefits that the Agency cannot achieve through direct regulation.
More broadly, the Court’s specific use of the Major Questions Doctrine is a significant development in the field of administrative law. Greater use of this doctrine could greatly curtail agency abilities to use existing statutory authority in new ways if the regulations have substantial impacts. This limit on agency powers could extend to many other areas.
Vital monitoring equipment arrives in Ukraine Europe War in Ukraine
Ukraine has received a large batch of crucial radiation protection and monitoring equipment offered by Australia and France and delivered by the International Atomic Energy Agency, director general Rafael Mariano Grossi said in the IAEA’s Update on 14 July.
The DG commented that the shipment of personal protective equipment, radiation dosimeters and radiation and contamination monitors marked a milestone in IAEA-led efforts to ensure nuclear safety and security during the current military conflict in Ukraine, which has four operational nuclear power plants with 15 reactors, as well as many other radiation-related facilities.
“This is a major step forward in our joint work to help Ukraine reduce the risk of a nuclear accident or a radiological emergency. I’m very grateful for the generous support provided by Australia and France, as well as by many other countries that have also offered to assist,” he said. “Despite significant logistical and other hurdles, the equipment has now arrived in Ukraine where it will be put to good use by our Ukrainian counterparts.” The IAEA has also previously assisted
Ukraine with equipment during three safety, security and safeguards missions to the country in recent months. But this was the first shipment organised through the IAEA’s Response and Assistance Network (RANET), where countries can register their capabilities for support in areas ranging from radiation dose assessments and decontamination to nuclear installation assessment and advice, radioactive source search and recovery, and much else.
The latest shipment consisted of more than 160 dosimeters and monitors as well as hundreds of items of personal protective equipment, including full body suits, masks and disposable gloves and covers. “More safety and security-related equipment will be transported to Ukraine in the coming months, thanks to substantial support from countries offering equipment and others providing extra-budgetary contributions for our assistance. The needs are large, and I encourage other countries to also step forward with support for our crucial work in Ukraine,” director general Grossi said. “Together with Ukraine, we have made significant progress in identifying and beginning to address what is needed for the
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highest possible level of safety and security at Ukraine’s nuclear facilities”.
Director general Grossi again stressed the importance of the IAEA being able to travel to the Zaporizhzya NPP (ZNPP) to conduct essential safety, security and safeguards activities at Ukraine’s largest NPP. The IAEA has not been able to visit the ZNPP since before the current military conflict in Ukraine. Russian forces took control of the plant more than four months ago, but its Ukrainian staff are continuing to operate it.
In official communications during the last week, Ukraine informed the IAEA about the “extremely difficult” situation at the ZNPP “due to constant pressure” on its employees. Director General Grossi reiterated his growing concern about the severe and challenging conditions facing staff at the ZNPP and the impact of such conditions on the safety and security of the plant, saying this further underlined the need for the IAEA to go there as soon as possible.
In relation to safeguards, the IAEA is continuing to receive remote safeguards data from the four operational NPPs, but it is still experiencing a partial loss of safeguards data transfer from Chornobyl.
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