The Biden administration threw a big party for its proposed limits on carbon pollution from power plants. But if its conservative critics prevail, the rule may never see the light of day. Republican-led states, bolstered by their successful legal smackdown of the Obama administration’s big power plant climate rule, are already planning lawsuits against President Joe Biden’s Environmental Protection Agency. Leading the way will be West Virginia Attorney General Patrick Morrisey, who also led the charge in the last go-round all the way to the Supreme Court. “We expect that we would once again prevail in court against this out-of-control agency,” said Morrisey upon release of the Biden proposal. Last summer, the high court said President Barack Obama’s Clean Power Plan violated what the justices call the “major questions” doctrine, which requires federal agencies like EPA to have clear authority from Congress before they regulate politically and economically important issues — like climate change. ‘Major questions’: The court has yet to define exactly what questions it will consider “major.” But red states could wield the doctrine to launch a legal attack on the power plant strategy that EPA unveiled Thursday. The president’s opponents could also challenge EPA’s focus on climate-friendly technologies that may be difficult and costly to implement, and they could say Biden’s plan all but guarantees that some coal-fired power plants will close, Niina H. Farah and Lesley Clark write. Some environmental lawyers predicted that the Supreme Court’s recent verdict on the Obama-era rule may prove useful for the Biden team’s legal defense. That’s because Biden’s proposal sets its sights on emissions reductions that can be achieved at individual plants — rather than transforming the power sector as a whole, as the Obama rule would have. “EPA is right in the wheelhouse in terms of what the court said to do,” said Jay Duffy, litigation director at the Clean Air Task Force. Power shift: No matter the legal outcome, some environmentalists said they were optimistic that Biden’s proposal could bring more aggressive climate action from the power industry. After all, the power sector achieved the goals of the Obama-era rule more than a decade ahead of schedule, even though the courts stopped the regulation from taking effect. “We'll analyze these EPA climate regs as if they'll stay in place,” tweeted Noah Kaufman, former White House climate official and a current climate economist at Columbia University, “but if they're likely to be rolled back by an ideological court or future admin, what matters most is how they'll move markets right away.”
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