The US Supreme Court held oral arguments this week on a conjoined set of cases that may determine what power the Environmental Protection Agency possesses to regulate greenhouse gas emissions at power plants.
Electric power generation accounts for 28 percent of US greenhouse gas emissions, but emission levels have dropped since a 2007 Supreme Court ruling on EPA’s regulatory powers. Fossil fuels, including coal, still generate the majority of electricity in the United States.
Before the court can decide what powers exist, it needs to unravel what regulations are in effect. The regulations promulgated by the Obama administration were held up in court and later rescinded by the Trump administration before going into effect. Trump’s more lenient regulations also stalled in court. The Biden administration is in the process of issuing a new, more stringent rule.
Justice Brett Kavanaugh asked during oral arguments, “What happens if EPA issues a new rule before we decide this case?” A ruling by the court is unlikely to come before June. A government spokesman said the Biden rule may not be ready until the end of the year.
The trigger for review is a petition by West Virginia Solicitor General Lindsay See, who wants the high court to vacate a DC Circuit Court, which he claims improperly gave EPA “new and transformative power”. See warned the anticipated Biden rule would be based on the DC Circuit Court’s errant interpretation of EPA’s powers under the Clean Air Act.
What happens if EPA issues a new rule before we decide this case?
“The D.C. Circuit decision gave EPA much broader power, power to reshape the nation’s energy sector, or most any other industry for that matter, by choosing which sources should exist at all and setting standards to make it happen,” See said.
U.S. Solicitor General Elizabeth Prelogar argued the purpose of the petition was to block the prospective Biden rule before it is issued. She said it would be “problematic” for the court to decide what powers EPA has or may have when there is “currently no applicable regulation” in effect. The court cannot rely on the Obama regulation, Prelogar said, because deadlines it contained have passed, and the Trump rule has been vacated.
The parties also disagreed on the impact of a court ruling. See said a court ruling could pre-empt Biden rule overreach and rely on EPA working with individual states on source-specific levels of emissions. Prelogar challenged the Trump approach to state-by-state regulation, which she said, “would threaten to disrupt an industry that has long relied on measures like trading and averaging to reduce emissions in the most cost-effective way.”
Federal FY 2022 Budget Update
Congress was in recess last week as bipartisan legislative negotiators, referred to as the “budget cardinals”, worked to finalize a Fiscal Year 2022 budget before the current continuing resolution expires March 11.
Specific numbers haven’t been revealed, but budget watchers anticipate significant increases for public health, healthcare and environmental protection spending pushed by congressional Democrats and a more than 5 percent increase in defense spending sought by congressional Republicans. The Russian invasion of Ukraine may have smoothed the path for defense spending increases, including sending more arms to besieged Ukrainians.
Supreme Court Nominee
Judge Ketanji Brown Jackson, President Biden’s precedent-setting nominee to the Supreme Court, is starting to meet with individual senators before formal confirmation hearings are scheduled. If confirmed, Jackson would replace retiring Justice Stephen Breyer, for whom she clerked earlier in her legal career.
Jackson has already been confirmed twice for federal judiciary positions, most recently last year, so her background, including as a federal public defender, is a matter of public record. There have been some partisan swipes at Jackson as the preferred candidate by the Democratic left wing, but no substantive issues have surfaced. A key logistical issue is that New Mexico Senator Ben Ray Luján is recovering from a stroke, leaving only 49 Senate Democrats and most likely requiring at least one or more GOP votes for Jackson’s confirmation.
Dr. Lorna Breen Health Care Provider Protection Act
In honor of Dr. Lorna Breen, an emergency room doctor who committed suicide after suffering burnout from treating COVID patients, Congress has passed legislation intended to improve behavioral health services to healthcare providers and healthcare students.
The legislation was championed by the Dr. Lorna Breen Heroes’ Foundation, created by her parents. The foundation is committed to finding strategies to address healthcare worker burnout. Its website notes 400 physicians commit suicide each year and the rate of suicide among doctors and nurses is twice that of the general population. A 200 percent increase in the risk of medical errors has been attributed to healthcare worker burnout, according to the foundation.
Breen had no history of depression or anxiety. Her risk factor was being an emergency room physician during a pandemic.
Jackson has already been confirmed twice for federal judiciary positions, most recently last year, so her background, including as a federal public defender, is a matter of public record. There have been some partisan swipes at Jackson as the preferred candidate by the Democratic left wing, but no substantive issues have surfaced. A key logistical issue is that New Mexico Senator Ben Ray Luján is recovering from a stroke, leaving only 49 Senate Democrats and most likely requiring at least one or more GOP votes for Jackson’s confirmation. Hearings on Jackson’s nomination will begin March 21.