Alex Gilbert on West Virginia v. EPA

It seems like these days every sentence that begins with “The Supreme Court…” finishes with truly appalling news — another draconian ruling regarding privacy, guns, or basic, fundamental human rights. This week on Sea Change Radio, we speak to energy expert Alex Gilbert about a recent Supreme Court decision that many environmentalists were eyeing with dread. To Gilbert, though, things could have gone much, much worse in the West Virginia v. EPA case. We dive into the details of this ruling: its political ramifications, its practical implications, and what it suggests about this court’s future environment-related decisions.

Narrator 00:01 This is Sea Change Radio, covering the shift to sustainability. I’m Alex Wise.

Alex Gilbert (AG) 00:11 If I were to have created the scenarios of my expected outcomes in this case, this outcome is actually better than my best-case outcome. When you look at what could have been done here, the fact that they took a case, they probably shouldn’t have taken anyways, that was a sign that a lot of people were thinking of very significant changes were coming to environmental law.

Narrator 00:34 It seems like these days every sentence that begins with “The Supreme Court…” finishes with truly appalling news — another draconian ruling regarding privacy, guns, or basic, fundamental human rights. This week on Sea Change Radio, we speak to energy expert Alex Gilbert about a recent Supreme Court decision that many environmentalists were eyeing with dread. To Gilbert, though, things could have gone much, much worse in the West Virginia v. EPA case. We dive into the details of this ruling: its political ramifications, its practical implications, and what it suggests about this court’s future environment-related decisions.

Alex Wise (AW) 1:33 I’m joined now on Sea Change Radio by Alex Gilbert. Alex is the Director of Space and Planetary Regulations at Zeno Power. Alex, welcome to Sea Change Radio.

AG 1:43 Thanks so much for having me Alex. I appreciate the opportunity to return.

AW 1:46 Yes, it’s been a while since we’ve had you. You’re an expert in the energy field. This new venture of yours that you’re engaged in Zeno Power. Why don’t you quickly explain what the director of Space and Planetary regulations at Zeno Power does?

AG 2:02 Yeah, so we are developing commercial radioisotope power sources. It’s similar to a nuclear battery, is the best way to think about it and it’s what NASA historically has used to power some of their deep space missions like the Apollo missions, the Mars Rovers, the Voyager missions, and NASA has their systems, but there’s a commercial space sector growing right now, and so we’re developing. Commercial space nuclear systems to help enable new applications in space as well as some things on Earth as well – areas that are very remote, hard to power that need just a little bit of power to really do cool things.

AW 2:36 And there hasn’t been any Supreme Court rulings that have affected your business lately, but I know that the rest of the country and a lot of the world has been on tenterhooks as these devastating Supreme Court decisions just roll in one by one. The latest was in the environment and I wanted to discuss. That with you, West Virginia versus the EPA. The headlines were that the Supreme Court handcuffed the EPA and the reaction of most people was not because the Supreme Court has been so destructive on so many issues this term in particular. Your take on this ruling was a little more optimistic though. Is that fair to say?

AG 03:21 Yeah, I think there was a lot of concern in the energy and climate policy world about this case. The fact that they took this case in the 1st place, as I’ll talk about is really weird. It deals with the regulation that’s not moving forward, and normally courts don’t do with that in considering the overall reactionary swing of the core and some of the cases that you’ve mentioned that have been very controversial, that seemed to break established precedent. There was concern that the Supreme Court, even taking this case, was a sign that they were about to deal a hammer deathblow to environmental law. Generally not even just climate litigation or regulation, but actually go at some of the fundamental principles. Underlying environmental law. So when this court case came out today, I think there’s been a lot of knee jerk reaction that oh, the Supreme Court is clearly cutting down on EPA’s ability to regulate greenhouse gases. Is the ruling itself is weird again because this wasn’t the case, they would normally take, and it was actually much more narrow than people realize. The EPA actually sells very broad authority under this to regulate greenhouse gas emissions and actually opens the door for them to do so with a higher level of legal certainty than they had two days ago.

AW 4:22 So why did the Supreme Court take this case and why don’t you kind of explain the knee jerk reaction that some journalists are taking in terms of looking at it through a wider lens?

AG 4:33 Yeah, so I’m going to give a brief history here because it helps understand the concept. Next, so the Clean Air Act has its origins in the 1960s. The major Clean Air Act itself was passed in 1970. The last time that we’ve done major amendments was 1990, and if you look at that compared to some other air pollution issues, that was somewhere going, we’re starting to deal with issues like smog or factory air pollution, and so the Clean Air Act. And specific provisions to deal with that type of pollution, but climate change and greenhouse gas emissions was just emerging as a major issue. The first environmental conference itself, Rio, was in 1990. The IPC was just forming and the first assessment report was in the 90s and so the way the Clean Air Act was written did not actually have provisions related to greenhouse gas emissions. Now that started changing and things essentially started in the early 2000s, there was a consideration from the EPA under the Bush administration whether they should look at greenhouse gas emission standards for car vehicles. Because the Clean Air Act under the specific provision there says they have to look at all air pollutants. They decided not to, and they got sued in the 2007 court case, Massachusetts versus EPA. The Supreme Court actually determined that greenhouse gases could be considered an air pollutant. If EPA reaches the endangerment finding that they threaten public health and safety in 2009, it did so and that led to them starting to regulate greenhouse gases first for vehicles, then, more recently, they’ve done other things like methane, but then under the Obama administration they looked at doing it for power plants. And this is where it gets to this court case. The law administration proposed a regulation called the Clean Power Plan and the Clean Power Plan looked at how to reduce emissions in the power sector through a number of methods. They did what’s called a building block approach because they were using very specific parts of the Clean Air Act that were meant for one year, regulating something that you didn’t know as an issue before. So the Supreme Court, what they’ve done here is, they’ve looked at that regulation that was withdrawn by the Trump administration, the Biden Administration is not pursuing, to see how they were trying to regulate the power sector and they found that while some parts of how they were doing it were OK, specifically requiring that coal power plants shift generation to natural gas or clean energy sources using that specific part of the Clean Air Act was not OK. So that’s really precise. That’s a technical procedural. Thing for a regulation that is not necessarily going into effect right now, EPA still has the ability to regulate greenhouse gases from vehicles. It sells the ability to regulate greenhouse gases from existing power plants, and so that’s one of the things when I think a lot of people were concerned that they’re actually into, maybe overrule Massachusetts versus EPA, or do some other things to make it really hard for EPA to do their job. Whereas what they really did is there was a technical ruling on a regulation.

AW 7:17 So Alex, you tweeted about how the technology and the carbon capture sector has shifted over the last few years and that kind of informs how we can read this case in Twitter. You’re limited to a number of characters, and so I wanted you to expand on that if you can.

AG 7:37  So the bottom line for this case, the Obama administration tried to regulate power plant emissions using things quote inside the fence lining, meaning at a facility or outside the fence line. By shifting generation away, the court said they can’t do the second one the way they were planning on doing that and so if you want to regulate emissions at a power plant now, you’ve got to look at the facility itself. When the Obama administration first developed the rules, the primary way they thought they can get some emissions reductions is what’s called a heat rate improvement. Essentially just making your power plant more efficient so you produce more energy per greenhouse gas emitted. You can get some efficiency there anywhere from 2 to 10% depending on the plan. That’s not enough to drive large scale changes, but that’s a fair amount.But at the time the administration did this, there were several other options that they either didn’t look at or that were technologically underdeveloped and still being pursued. So one area is carbon capture where you essentially capture the emissions from a power plant, put it underground. And that way you do are not putting that into the atmosphere. At the time, the regulation of the bomb ministration was first developed in 2013 that technology seemed very immature and expensive. It is still a technology that is not widespread. It’s seeing widespread use in the power sector, but we have had a successful retrofit at the Boundary Dam facility in Canada. We also have carbon capture operating in many other sectors. If you were to do that same analysis today, it’s a mature technology that is going to be expensive for coal plants. But it is a reasonable control technology that would comply with the Supreme Court’s ruling. Another option that has emerged over the past five to eight years is actually converting a coal power plant to run on natural gas. We’ve actually seen about 100 power plant units around the country. Have done that over the last 10 years. That’s primarily been to reduce local air pollution and toxic air pollution, not greenhouse gases, but it has had greenhouse gas benefits and the EPA in 2013, when they first look. This said, this doesn’t seem like a feasible option because of the shale revolution because of everything that’s happened with natural gas availability. It is and so the Biden administration can come in and use these three methods. Heat rate improvements, carbon capture and potentially requiring a shift to natural gas to create a relatively stringent greenhouse gas regulation based on this ruling.

(Music Break) 10:01

AW 10:30 This is Alex Wise on Sea Change Radio and I’m speaking to Alex Gilbert. He’s the director of Space and planetary regulations at Zeno Power, so Alex when we’re talking about this, West Virginia versus EPA case, it sounds like it’s not just the media that is painting the ruling with a broad brush the Biden administration also has looked at it as a negative ruling Biden. He said himself that it was devastating and it aimed to move the US “backward in the climate fight.” So what is the President missing here? How are they misinterpreting this so egregiously?

AG 11:10 Well, frankly, I think what they’re doing is playing good politics. The Supreme Court, as we’ve talked about, has had this very reactionary bent lately. It’s had many issues that are impacting immigrant communities, women rights, tribal communities and this is showing again that the core is potentially hostile to environmental groups. So while the ruling itself is relatively narrow. Specifically, there are concerns that in the longer term this could show how the court would rule in similar environmental cases, but really this is in some ways a political gift to the administration because they can say this is a radical court. It is something that is. It’s consistent with the rest of their messaging and their political goals while at the same time, the ruling itself doesn’t overly constrain what they can do policy wise and so in some ways this is kind of the best of both worlds considering what could have happened had there been a much more aggressive ruling.

AW 11:59 So is it a gift to the president or is it maybe an ominous sign of things to come?

AG 12:06 I think there are concerns generally about how this court would handle environmental cases. There’s enough support here that a Circuit Court will probably uphold a number of greenhouse gas regulations in the power sector in other sectors. If you do a similar program in the future, there’s definitely going to be Supreme Court review, but if you look at this both this case and the most recent greenhouse gas. Case at the Supreme Court urged versus EPA, which was also a conservative panel. There is some support to push back on environmental regulations, but not necessarily completely get rid of. Ultimately though, when you look at what we have the tools we have on the Clean Air Act, they are not sufficient to deal with what we need to do on the climate change question. The Clean Air Act is a blunt instrument for dealing with greenhouse gas emissions. We will use it if we need to, because we must reduce emissions as fast as possible as much as possible, but it is no substitute for action. By Congress for action by state governments and for the private sector to play a role here. So, the court and legal approach the regulatory approach to try and deal with greenhouse gases under existing legal authorities. It’s a ball game worth playing. It’s one that is always going to be an uphill battle, and it’s going to be slow. We need to take this moment to say we should try and redouble these efforts. We must continue them, but we also need to recognize that this avenue. There’s never going to be how we’re going to solve the climate challenge. We need to have national legislation. We have other solutions besides a regulatory approach through the Clean Air Act.

AW 13:34 So, in her dissent, justice Elena Kagan said that quote whatever else this court may know about it, does not have a clue about how to address climate change, so she was worried that the ruling is saying that the courts and the Congress should ultimately be legislating environmental regulations, not the Environmental Protection Agency. Do you see it that way, Alex?

AG 13:59 Yeah, I think what that is hinting at is one of the underlying tensions here between the Conservative and Liberal justices on the court. When you look at the fundamental root of the statutory issue here, the issue is that the Clean Air Act did not have specific directions to EPA on how to handle greenhouse gas emissions. It had general guidance for how to deal with air pollutants. So a lot of the litigation and back and forth that’s happening is over interpretations of frankly terms that are somewhat ambiguous. For different cases, the word air pollutant, depending on where it is in the Clean Air Act can mean different things and that leads to different regulatory umbrellas. In terms of what Justice Kagan was talking about in looking at how this is applied in practice, I think that there’s a big difference between the liberal and the conservative wings of the Court on what powers Congress has actually given to the EPA, and I think that that’s part of the challenge here. There’s ambiguity. There’s one reading where they’ve given the EPA broad powers and discretion to deal with this there’s another reading where to do something that is as intensive as regulating the whole power sector will require much more specific statutory authorization. I think one thing that you’re sensing too with the ruling here is that the EPA has a clear directive to regulate new things that have come up that are not in the Clean Air Act like greenhouse gas emissions. How they do that though is not as clear, and I think that the conservative wing is pushing back on that how to a certain degree because they don’t see guidance in the statue itself and they see that Congress is not acting on this. I think there’s a number of things here too: The broader questions about textualism versus an evolving constitution, the role of the regulatory state that are going back and forth in these discussions between the justices.

AW 15:40 So you mentioned Congress. I thought it was pretty rich for the conservative wing of the court to be referencing Congress as having the legislative authority in this when they’ve done so much to strip Congress of its powers recently, you know kicking everything back to the states. How do you see it playing forward in future cases that could be analogous to this West Virginia versus EPA case.

AG 16:08 Well, one thing that was odd about the conservative opinion in this case that I actually found really concerning is that they pointed to Congress and ability to pass a CAP and trade system as a sign of congressional intent when they wrote the Clean Air Act decades ago. I think that’s inappropriate, and I think what they’re doing is essentially twisting some facts to what they wanted to rule on. The fact that Congress has new legislation that’s not moved forward on the issue actually does not bear on a different Congress from decades ago, and what their legislative intent was, and I think there is no ambiguity that the Congress that passed the Clean Air Act of 1970 and the amendments in 1990 wanted EPA to have the ability to deal with new issues they wanted EPA as the expert agency to address new air pollutants. To be able to handle new things that are arising without Congress always having to step in. And so, just because Congress hasn’t done anything on this for the last 15, 20, 30 years, that is not the basis to do what the Court has been doing for some of their interpretations. I think moving forward, there are broader questions about if Congress can pass a greenhouse gas cap and trade system or a carbon tax, how might the court rule on that? I think if you look at what the court has been doing here. For most of the justices, a relatively moderate case outcome they could have been much more aggressive they could have done something like say that greenhouse gases are not a pollutant or you do not have the ability to look at this. But if Congress does do something like that, it will likely have a challenge that could go to the Supreme Court, and I think the concern here is that you have 6 justices now that might vote to strip Congress of certain authorities there. It is uncertain what that looks like. I think depending if you’re doing a cap and trade or carbon tax system, there could be different legal justifications. But in terms of the regulatory state, the only way that Congress, I think can address this specific question of the Clean Air Act is Congress needs to be specific about Clean Air Act authorities related to greenhouse gas emissions, whether that is some policy mechanism, whether that is a direct broad grant of authority to give Congress ability to handle or EPA the ability to handle all these things that Congress wants it done, unless you can get to a really high degree of legal certainty. The Supreme Court will be a big stumbling block and I think the other thing too is beyond Congress for the executive branch the Biden administration. They’re going to be much more wary developing rulemakings now. Moving forward when it comes to greenhouse gas emissions, whereas before they might try and be very aggressive, say under the Obama ministration of the Clean Power Plan, anything that they do develop is going to be really close to what they think that can get passed legal muster, right now, because they’ll probably expect that the core is going to be more likely than not to take up major greenhouse gas cases in the future.

(Music break) 18:59

AW 19:35 This is Alex Wise on Sea Change Radio and I’m speaking to Alex Gilbert. He’s the Director of Space and planetary regulations at Zeno Power. So Alex, you mentioned how this West Virginia versus EPA case, the majority opinion did not do some of the things that we feared such as saying that the EPA would not have the purview over emissions in general, or that greenhouse gas emissions are not harmful to the environment, etc. And I know this is a long opinion and it just came out so you’re not responsible for having read every word of it, but are you aware of any sidebars from Alito or Thomas in terms of something along that lines that a climate change denial type rhetoric.

AG 20:30 Yeah, so the majority opinion here was decided on by 6 justices and then the other three justices dissented. Gorsuch and Alito had a concurring opinion, which means that they agreed with the overall majority opinion, but they also had other thoughts. They wanted to expand on and that’s where they actually looked in depth, not so much as the climate change implications. But on questions related to regulatory state and administrative law, they essentially are building out what they call the major questions doctrine. So the way that most environmental law administrative law works right now is based on the Chevron doctrine, which was decided in 1984, which gives judicial deference to agencies when a statue isn’t ambiguous. Basically, it means that if Congress writes something and it’s kind of unclear what it says, if the agency has a reasonable analysis and not just justifiable case for what they think it says, and they regulate on that basis, courts will defer to that agency’s specialists and courts acknowledge that they’re not the major questions doctrine. I think what they’re trying to do here is lay the foundation to either overturn the Chevron doctrine or provide a lot more critical judicial review of the Chevron doctrine. What that means in practice they it’s really loosely defined. It’s something that they are creating essentially in real time. It’s not founded based on originalist or textualist philosophy. It’s essentially the idea that when it comes to a major question, a major issue of public policy, something that you would normally expect Congress to weigh in on, if Congress hasn’t weighed in on it and been specific about it and has just given vague authority to Regulatory agency. These then the major questions that doctrine will say that you actually can’t regulate on that even if Congress says that like EPA, you have broad authority to address new pollutants that might arise and that wipe apply to greenhouse gases. The major questions doctrine says greenhouse gases. They’re a very national concern. They impact all parts of the economy. And if EPA regulates them, it’s going to have a lot of implications for industry and society. A lot of economic implications as well, and so it is something that it’s a doctrine that’s in development.  I think that if you talk to most legal scholars is there’s a very weak case for it being found in American traditional thought throughout history. I think part of it is they are trying to reverse Chevron doctrine because that gives a lot of power to regulatory agencies and the Executive branch so that’s the biggest thing that I would flag there is that they’re kind of setting up. This major questions doctrine, so in the future, if there are other major regulations, whether outside of environmental law or in environmental law that have wide ranging consequences. In some level of statutory ambiguity, the court might well be in a position to strike that down. I think the thing about this case that struck me is that You were only able to get Gorsuch and Alito to join that major question doctrine concurrence. That makes me likely think that not having, say, Thomas on there makes me think that if you look at future cases, there’s not enough as much appetite to necessarily invoke that doctrine to overturn major parts of law. So it seems like the core is not going to be willing to step in and say EPA reaches endangerment finding but we don’t think that need German findings appropriate or overturning that but doesn’t seem like where the core is heading. It seems more likely what they’re trying to do is limit the ability to do new ambitious things, not necessarily things that have been done previously.

AW 23:34 And to be clear, I mean we’re still talking about government regulations, whether it be from Congress or the EPA. But what’s the political reality, is that right now the White House is democratically controlled, and so the EPA is the instrument of that administration. If the House of Representatives should flip to the Republican majority in the fall, then that would be a new political reality for enforcing these regulations. This is kind of at the heart of it, in my interpretation, is that fair?

AG 24:10 Yeah, I think that that’s one of the things that is underlying a lot of the judicial and legal history here. One of the issues that led to this case is that the Clean Power Plan developed by the Obama administration was withdrawn by the Trump administration. The Trump administration created their own, which would have been very weak and would have been subject to environmental challenges. Would have also gone through the courts. Then the Biden Administration with through that, and so the fact that the Court took this case in the 1st place is just kind of weird because it was dealing with a regulation that is several regulations ago it’s not moving forward. It’s not clear if the next EPA, the next administration, will keep up with that. The rulemaking process, depending on how it’s done, takes two to five years and on top of that you’re going to have judicial review afterwards. So you need to have a eight year period, really a two term period to be able to develop the regulation to be able to get it through several rounds of legal review and defend it before it becomes law before another administration can come in. Or potentially Congress can come in and try and push back against it. So again, when you look at this. It’s always important to remember that the Clean Air Act, the regulatory system. It is a tool in the box, but we always knew we’re going to need something more and this is just showing why it’s not a good tool. The process here started in 2003 when the first looked at whether greenhouse gases apply for vehicles. It’s 2022 vehicles have some standard, haven’t gotten to power plants yet.  We haven’t gotten to refineries. We haven’t got to a whole host of greenhouse gas emitters. It’s a slow moving long term process and if we if we don’t return climate goals, it’s not going to be because of the Supreme Court is preventing the EPA from being the Clean Air Act regulator. It’s going to because we have not had these sufficient top level Federal climate bill that gets us moving in the right direction that provides clear, unambiguous, statutory authority to EPA or other agencies to address this problem.

AW 25:58 But for climate hawks like yourself, reading this EPA versus West Virginia case, you said that it felt like an opinion from six years ago and is it fair to characterize that you felt a little bit of relief that there was a bullet that was slightly dodged?

AG 26:16 Absolutely, if I were to have created the scenarios of my expected outcomes in this case, this outcome is actually better than my best case outcome. When you look at what could have been done here, the fact that they took a case, they probably shouldn’t have taken anyways, that was a sign that a lot of people were thinking of very significant changes were coming to environmental law, the actual ruling here, it’s very specific to section 1.11b, deregulation of existing sources for new types of emission. And even then, it’s only specifically tailored to the Clean Power Plan. So if you do a 1.11b deregulation in the future for a different sector, it’s not actually clear that this regulation provides binding precedent for what you’re trying to do. It’s a really narrow technical reading. One of the things that I think happened here is that when the Court was first looking at taking this case. You had five justices that might have wanted to do something more ambitious, excluding Roberts. I think that they might have wanted to maybe done something to really change administrative law, and I think as this case got argued, because there were a lot of people that sent in amicus briefs that tried to make broader arguments, including the government about whether this is even a moot case to consider. I think that Roberts was able to work with the other justices, get several of the justices that might have wanted to do something more ambitious and tamed down that rule, and to make it very procedural, make it very narrow, but whether that’s the case in the future, whether that would apply to other case law for environment or climate change, who knows, this is a court that will generally be skeptical of greenhouse gas regulations under the existing Clean Air Act. It’s a court that will be generally skeptical of environmental law. But what happened here is, I think that the case itself could have been much worse. I’m breathing a sigh of relief right now, and I think there is a pathway forward for continuing greenhouse gas regulations under this precedent.

AW 27:58 Alex Gilbert thanks so much for being my guest on Sea Change Radio.

AG 28:02 Thanks again for having me.

Narrator 28:17 You’ve been listening to Sea Change Radio. Our intro music is by Sanford Lewis and our outro music is by Alex Wise. Additional music by O’Donnel Levy, The English Beat and The Beatles. Check out our website at to stream or download the show, or subscribe to our podcast and visit our archives there to hear from Bill McKibben, Van Jones, Paul Hawken and many others. And tune into Sea Change Radio next week as we continue making connections for sustainability. For Sea Change Radio, I’m Alex Wise.