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What Would Happen If…?

Gianna Bruno49

In this paper, I will discuss the implications of a hypothetical
case that would allow the Environmental Protection Agency to
first, regulate greenhouse gasses, and second, interpret 42 U.S.
Code § 7411 to call for a constant decrease of greenhouse gas
emissions and require the shutdown of all coal-fired plants in
the United States. I will also discuss opinions on the Inflation
Reduction Act, which was signed into law on August 16, 2022,
and could pave the way for a hypothetical such as this to
become a reality.

I. Hypothetical

The Environmental Protection Agency (EPA) has
introduced a new regulation that will affect existing sources
that emit greenhouse gasses called the Existing Source Rule.
The hypothetical regulation would limit the amount of
greenhouse gas emissions that are produced by a state’s
electricity grid. In short, the law aims to limit greenhouse gas
emissions in order to reach a net-zero value of emissions in the
United States by 2030. Experts believe that under this
regulation, it would be possible to eliminate greenhouse gas
emissions by 2030 if states shut down all of their coal-fired
power plants. The EPA believes that this regulation is
necessary and proper as it is the “best system of emissions
reduction” because they regulate grids as a whole rather than
any marginal or fractional changes to the grid which could

49 Brandeis University Undergraduate, Class of 2023.

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Brandeis University Law Journal Fall 2022, Volume 10, Issue 1

create greater environmental benefits.50 The Supreme Court
found that the EPA’s interpretation of the “best system of
emissions reduction” was reasonable and therefore it should be
implemented.51 Thus, future policies and decisions will be
affected by the gravity of this hypothetical Supreme Court
decision. This paper aims to provide an analysis of possible
policy implications as well as how the consequences of the
Supreme Court (SCOTUS) decision will affect the EPA, the
Clean Air Act (CAA), other future cases such as this one, and
climate change.

II. Background

Before delving into the hypothetical, it is important to
define the variables. First, the EPA was created on December 4,
1970, by Order 1110.2 as directed by President Nixon in order
to combat negative effects on the common good due to
pollution; thus, the EPA plays a direct and active role in the
regulation of air pollutants.52 Second, the Clean Air Act (CAA)
is a set of federal laws that regulate air emissions. Most
importantly, the CAA grants the authority to the EPA to protect
public health and public welfare and to regulate emissions of
hazardous air pollutants.53 Briefly put, the CAA was created to
encourage pollution prevention.54 The CAA, establishes “a
series of regulatory programs to control air pollution from
stationary sources” which articulates the regulation of power
plants just like the ones the EPA are attempting to regulate in
the hypothetical.55 Power plants are considered stationary
sources because under the CAA, a “stationary source” is

55 “Summary of the Clean Air Act,” 2022.
54 42 U.S.C. § 740l (b).
53 “Summary of the Clean Air Act,” 2022.
52 “EPA Order 1110.2 -- Initial Organization of the EPA,” 2016.
51 42 U.S.C. § 7411.
50 42 U.S.C. § 7411.

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specifically defined as “any building, structure, facility, or
installation which emits or may emit any pollution”56 and thus,
under this definition power plants can be regulated under the
section entitled “Standards of Performance for New Stationary
Sources” or 42 U.S.C. § 7411.57

III. Analysis

To reiterate, the SCOTUS decision from the
hypothetical case declared that the EPA’s interpretation of “best
system of emission reduction” was reasonable insofar that the
interpretation aligned with the Congressional Intention to
protect the nation's air quality.58 Therefore, in order for the
states to be able to comply with the continual need to decrease
emissions, all coal-fired power plants must be shut down by
2030. Once all the coal-fired power plants are shut down, what
would this mean for future policies regarding greenhouse gas
emissions? First, it is important to note that as of 2019,
greenhouse gas emissions from the power sector make up
about 25% of emissions. Even though coal-fired power plants
will not be eliminated until 2030, there will be a steady annual
decrease. Policymakers could now shift their focus from
creating policies regarding power-based greenhouse gas
emissions and focus their attention on other sectors producing
emissions such as transportation and industries.59 Second,
setting this interpretation in stone removes any and all political
will from possible legislation.60 Assuming this case is not
appealed, it would be safe to declare that the annual grid-wide
decrease will occur up until the point that the power plants are

60 Betts, “Can the U.S. Phase out Coal's Greenhouse Gas Emissions by
2030?”

59 “Federal Climate Policy 101: Reducing Emissions.”
58 42 U.S.C. § 740l (b).
57 42 U.S.C. § 7411.
56 42 U.S.C. § 7411(a).

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inevitably shut down, which no policy can change because
SCOTUS declared the reasonability of the EPA to make that
regulation in perpetuity. Therefore, it is impossible for the
legislature to change the outcome. At this point, any policies
that would merge post-implementation would be used for
specific adjustments or regulations on how the grid-wide
decrease will proceed.

A. Environmental Protection Agency

Even though greenhouse gasses are not criteria
pollutants, the EPA declared that they are a danger to public
health and welfare, therefore, SCOTUS acknowledged their
danger when they declared the term “best” to refer to the most
advantageous adjustment in regard to protecting the nation’s air
quality. The SCOTUS decision affirming this standard allows
the EPA to implement similar policies across the agency
because this case, among others, upholds the danger of
greenhouse gasses and gives support to the EPA to enforce
regulations to reduce those emissions. Post-implementation, the
EPA can now set more standards outside of power plants that
will limit greenhouse gas emissions.

B. Clean Air Act

The SCOTUS decision will impact the CAA in a
similar fashion to the way that the decision affected the EPA.
The EPA can utilize the approved interpretation of the “best
system of emission reduction” under the CAA to implement
more strict pollution control standards across the nation and
related sectors that emit greenhouse gasses. The SCOTUS
decision does not affect the words of the act itself, but rather
the decision allows for a more generous reading of the

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promotion of pollution prevention, which, in turn, allows the
EPA to enforce emission reductions.61

C. Future Cases Like This

As stated above, this case set the precedent of
regulating greenhouse gasses in place. Therefore, any future
cases that may arise are more likely to be dismissed because
SCOTUS concluded the EPA’s interpretation to be reasonable,
and therefore, the regulation may be implemented. Potential
upcoming cases that could arise would include cases regarding
emissions standards not being met, cases involving legislative
policies regarding implementation standards and subsequent
EPA interpretations, or perhaps cases about technological
implementations. However, any cases that question the
implementation of the “Existing Source Rule” must be
dismissed because the reasonableness of the regulation is
upheld by the SCOTUS decision.

D. Climate Change

Lastly, the SCOTUS decision will have great
implications on climate change. “Coal (...) is the energy source
that is most responsible for accumulated fossil-fuel CO2 in
today’s atmosphere,”62 therefore, under the implementation of
the “Existing Source Rule,” coal-fired power plants will be
eliminated by 2030, which means the elimination of coal as a
power source. Since coal is the leading source of greenhouse
gas emissions, removing coal as an emission source would
substantially slow the speed at which the world is heading into

62 Betts, “Can the U.S. Phase out Coal's Greenhouse Gas Emissions by
2030?”

61 42 U.S.C. § 740l (b).

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a climate crisis.63 Researchers and scientists fighting climate
change could then also focus on reducing the emissions from
other greenhouse gas emitters without needing to focus their
energy into decreasing coal emissions.

IV. Recent Developments

On August 16th, 2022, the Inflation Reduction Act of
2022, H.R.5376, became law.64 The act has been worked into
the Fiscal Year 2022 budget and “allocates hundreds of billions
of dollars to facilitate a clean energy transition, primarily
through clean energy tax credits.”65 The act, while primarily a
fiscal document, makes major strides toward environmental
justice. In the next paragraphs, I will analyze Lisa Friedman’s
report from the New York Times and Marlo Lewis, Jr.’s article
from the Competitive Enterprise Institute about how the
Inflation Reduction Act could affect the EPA’s regulation
power.

A. Democrats Designed the Climate Law to Be a Game

Changer. Here’s How

Lisa Friedman starts her article by boldly stating that
Congress has now given the EPA the authority to make
regulations that would move the U.S. away from needing to
burn fossil fuels. According to the Act and Friedman’s report,
“That language (...) explicitly gives the E.P.A. the authority to
regulate greenhouse gasses and to use its power to push the

65 “5 Things to Know about the Inflation Reduction Act's Environmental
Provisions,” 2022.

64 “Inflation Reduction Act of 2022.”  H.R.5376, 117th Congress
(2021-2022).

63 Betts, “Can the U.S. Phase out Coal's Greenhouse Gas Emissions by
2030?”

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adoption of wind, solar, and other renewable energy sources.”66

Furthermore, she states that the Act grants billions of dollars to
the EPA to fund the means in which emissions are reduced and
work to ensure that carbon dioxide is not emitted into the
atmosphere. In short, Friedman reports that only some
environmental experts claim the Inflation Reduction Act will
not have any large effect on policies. However, the overall
tenor of the piece points towards the conclusion that this act is
legislatively understood to be Congress giving the EPA the
authority to address the climate crisis regarding the power
sector.67

B. Inflation Reduction Act and West Virginia v. EPA:

Legislative History Refutes Sen. Carper’s Spin

In contrast, Marlo Lewis, Jr. refers to Friedman’s article
and claims that her understanding of the Inflation Reduction
Act is flawed. From his viewpoint, the provisions of the Act
could in no way authorize the EPA to implement new or
stronger regulatory measures. Rather, he reports that the Act is
merely a vessel for fiscal power that could lead to better
technology with the power to change emission standards.
Lewis criticizes the former interpretation of taking too much
liberty in dictating what the undertones of the Act could mean,
rather than focusing on the actual content of the Act. Both
Lewis and Friedman agree that the Inflation Reduction Act can
cause positive changes to curb the climate crisis. While Lewis
believes those changes are coming from the budget giving way
for new technologies, Friedman contends that those changes

67 Friedman, “Democrats Designed the Climate Law to Be a Game
Changer,” 2022.

66 Friedman, “Democrats Designed the Climate Law to Be a Game
Changer,” 2022.

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can come directly from the EPA itself based on the expansion
of regulatory powers.68-69

C. H.R. 5376

The precept of the Inflation Reduction Act yields two
contrasting understandings of the EPA’s potential new
regulatory power. This section will briefly relay how the Act
touches upon environmental policies. First, this Act introduces
the Methane Emissions Charge which will mandate a fee on
greenhouse gas emissions. Second, the Act is slated to budget
$30 billion dollars to go towards greenhouse gas emission
reduction projects. Lastly, the Act “has a strong focus on
environmental justice.”70 The budget will be used to improve
communities who are greatly affected by the climate crisis. In
short, the Act does not give the EPA the direct authority to
make regulations regarding greenhouse gas emissions,
however, it does outline the harmful nature of greenhouse
gasses and provides means of which to lessen the emissions for
the sake of the common good.71

V. Conclusion

Overall, it is unclear how exactly the Inflation
Reduction Act will affect future environmental policies. As of
August 22, 2022, the EPA has not commented on the Act or
how the Agency itself could be affected by the Act. 72 At

72 Friedman, “Democrats Designed the Climate Law to Be a Game
Changer,” 2022.

71 “5 Things to Know about the Inflation Reduction Act's Environmental
Provisions,” 2022.

70 “5 Things to Know about the Inflation Reduction Act's Environmental
Provisions,” 2022.

69 Friedman, “Democrats Designed the Climate Law to Be a Game
Changer,” 2022.

68 Lewis, “Inflation Reduction Act and West Virginia v. EPA,” 2022.

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face-value, the Act could potentially lead to legislation that will
create a positive impact on the environment, such as the law
and effect proposed in the hypothetical case.

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Betts, Kellyn “Can the U.S. Phase out Coal's Greenhouse Gas
Emissions by 2030?” ACS Publications. Accessed
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“EPA Order 1110.2 -- Initial Organization of the EPA.” EPA.
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Friedman, Lisa. “Democrats Designed the Climate Law to Be a
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“5 Things to Know about the Inflation Reduction Act's
Environmental Provisions: Insights: Vinson & Elkins
LLP.” Vinson & Elkins, September 20, 2022.
https://www.velaw.com/insights/5-things-to-know-abou
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.

Codes Cited

42 U.S.C. § 740l.
42 U.S.C. § 741l.

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