Gov. Gordon, PAW applaud SCOTUS ruling; EPA vows lawful actions


WASHINGTON D.C. – In another landmark ruling June 30, the Supreme Court of the United States (SCOTUS) ruled 6-3 against the U.S. Environmental Protection Agency (EPA) regarding its lack of statutory legal authority to regulate states in the case of West Virginia v. EPA.

Wyoming oil and gas agencies along with state politicians are jubilantly celebrating the SCOTUS ruling as a decisive win for Wyoming’s future fuel industry.

In a press release hours after the ruling, Wyoming Governor Mark Gordon wrote, “Today’s Supreme Court decision regarding the Environmental Protection Agency’s regulatory authority is a clean win for Wyoming.”

In addition to West Virginia, Wyoming was one of 19 other states listed as a party to this lawsuit with a vested interest as an oil producing state. The 18 other states that held a vested interest in the case against the EPA include: Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, and Utah.

“Wyoming joined this lawsuit to protect Wyoming’s coal-fired plants from federal overreach intent only on curtailing coal-fired electric generation,” Gordon expressed. “Today’s decision recognizes that innovation – not regulation – is a key to a prosperous future and a healthier environment.”

Gordon added, “the legal authority to regulate emissions properly lies with Congress and the states, not an overzealous federal bureaucracy insulated from practical accountability.”

“In Wyoming, our way of life is inextricably linked to the environment,” Gordon explained. “Outdoor recreation is a rite of passage and ensuring that clean air and water remain for current and future generations is a priority for all of us.”

Gordon reaffirmed his longstanding commitment to reduce its carbon footprint and said, “Wyoming seeks to address pollution and climate change at its source by fostering improved technology and better management. We believe that an all-of-the-above energy strategy that encourages free enterprise to solve our most pressing issues is the best road to a brighter future, a healthier environment, better jobs and more sustainable communities.”

SCOTUS held two rationales against the EPA in its 6-3 majority opinion penned by Chief Justice John Roberts.

The first being that: “This case remains justiciable notwithstanding the Government’s contention that no petitioner has Article III standing, given EPA’s stated intention not to enforce the Clean Power Plan and to instead engage in new rulemaking. In considering standing to appeal, the question is whether the appellant has experienced an injury ‘fairly traceable to the judgment below.’” Which loosely means, the EPA in itself does not have legal statutory authority to generate, create, enact, mandate and/or enforce regulatory actions based largely on the desire of the current administration’s promises to enact stricter Congressional policies regarding the oil and gas industry.

The second being that: “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.” In plain language it means, at no point was the EPA given extra authority provided by the different branches of federal government to be the governing body that generates, creates, enacts, mandates and/or enforces regulations and/or policies regarding the oil and gas industry.

Based on earlier legal precedents pertaining to the oil and gas industry, Chief Justice Roberts wrote, “given that precedent counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach, the Government must point to “clear Congressional authorization” to regulate in that manner.” To which Roberts noted that there has been no such clear Congressional authorization to date.

“The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a ‘standard of performance’ for their emission of certain pollutants into the air,” Chief Roberts wrote. “That standard may be different for new and existing plants, but in each case it must reflect the ‘best system of emission reduction’ that the Agency (EPA) has determined to be ‘adequately demonstrated’ for the particular category.”

“Since the passage of the Act (Clean Air Act) 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly,” Chief Roberts explained. “In 2015, however, EPA issued a new rule concluding that the ‘best system of emission reduction’ for existing coal-fired power plants include a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.”

“The question before us is whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act,” Chief Roberts questioned. Ultimately, six of the nine Justices agreed that the EPA does not have authority to regulate such changes to agencies within individual state jurisdictions.

Additionally, Chief Robters pointed out that coal-fired power plants already must adhere to two other regulatory authorities, the National Ambient Air Quality Standards (NAAQS) program and the Hazardous Air Pollutants (HAP) program; adherence to both programs ensures plants are at least meeting the minimum EPA and Clean Air Act standards to remain in operation. Roberts also noted the difference in regulatory authority between the EPA versus NAAQS and HAP, “EPA is generally limited to determining the maximum safe amount of covered pollutants in the air.” Whereas, NAAQS and HAP are the regulatory agencies tasked with enforcing a variety of regulations, including the Clean Air Act.

“Although the States set the actual rules governing existing power plants, EPA itself still retains the primary regulatory role in Section 111(d),” Chief Roberts stated. “The Agency (EPA), not the States, decides the amount of pollution reduction that must ultimately be achieved.” Roberts points out that each plant must submit plans that fall within the EPA’s guidelines for approval - and may select how it reduces emissions and air pollutants – asserting the EPA has no regulatory authority to make that determination for the plants themselves.

Justice Neil Gorsuch’s concurring opinion stated, “Under that doctrine’s terms, administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’ Like many parallel clear-statement rules in our law, this one operates to protect foundational constitutional guarantees.”

“Consider some examples. The Constitution prohibits Congress from passing laws imposing various types of retroactive liability,” Gorsuch wrote. “The Constitution also incorporates the doctrine of sovereign immunity – to enforce that doctrine, courts have consistently held that ‘nothing but express words, or an insurmountable implication’ would justify the conclusion that lawmakers intended to abrogate the States’ sovereign immunity.”

In plain terms, Gorsuch states that insurmountable implication would be the sole justification that lawmakers could argue to repeal or do away with in regards to each states’ individual state sovereignty. State sovereign immunity refers to the state's protection in the event the federal government wants to sue; it states that a state cannot be sued in federal or state courts without that states’ consent. As a result, in its own court, a state can invoke immunity – even when being sued under otherwise valid federal laws at the state and/or federal court levels – and has full authority to define the scope of the state's immunity from federal suits, based on state laws.

Gorsuch further explains that state sovereign immunity is rooted in U.S. Founding Father Alexander Hamilton’s The Federalist No 11 paper. “It is vital because the framers believed that a republic— a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers,’” Gorsuch quoted.

Which Gorsuch backed with a quote from Fourth U.S. President James Madison, “But by vesting the lawmaking power in the people’s elected representatives, the Constitution sought to ensure ‘not only that all power would be derived from the people,’ but also ‘that those entrusted with it should be kept in dependence on the people.’”

“The court acknowledges only that, under our Constitution, the people’s elected representatives in Congress are the decision makers here – and they have not clearly granted the agency (EPA) the authority it claims for itself,” Gorsuch explained.

To read all 89 pages of the case, majority court opinion and dissenting opinions visit, www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf.

In a press release on June 30, the Petroleum Association of Wyoming issued its statement in response to both the quarter two (Q2) 2022 BLM (U.S. Bureau of Land Management) Lease Auction and SCOTUS ruling in West Virginia v. EPA.

In response to Justice Gorsuch’s statement regarding the EPA’s lack of clearly granted Congressional authority, PAW wrote, “In other words, the EPA – an agency bent on growing its authority beyond what it was given – was finally and forcefully told no.”

In the release provided by PAW Vice President and Director of Communications Ryan McConnaughey, the agency also stated, “While the oil and natural gas industry is continually improving operations and reducing emissions, we believe any federal regulatory framework must be based on legal authority granted by an act of Congress.”

“The Legislative Branch has long abdicated its duty in passing coherent, meaningful legislation that addresses the most pressing issues of the day,” PAW explained. “That has opened a void allowing unelected bureaucrats to consolidate decision making power. Today’s Supreme Court ruling is a welcome rebuke of that trend and a step in the right direction to rein in unwieldy agency rules made by those who do not answer to the people.”

The PAW release went on to say, “while the Court’s (SCOTUS) decision focused on the EPA – it is far from (the) only agency that has seen increased authority absent (of) Congress action. The Department of Interior (DOI), at the direction of an anti-domestic production President (Joseph Biden), has worked day and night to shut down federal oil and natural gas activity.”

“Despite their efforts, the Courts (SCOTUS) forced DOI to meet its Congressionally mandated obligations and host the first BLM quarterly lease sale in Wyoming in more than 18 months,” PAW reiterated.

“Despite the headwinds from the administration and the BLM’s decision to remove many of the nominated parcels from the sale, Wyoming producers leased 67,628 acres for $12,900,598 – an amount equivalent to more than 840 Americans’ annual federal tax burden,” PAW explained.

PAW noted the average price per acre was $229.95 and one lease was sold for $6,018 per acre – generating more revenue than the entire Q2 2020 lease sale.

“We are pleased that Wyoming will finally see leasing bonus(es) that fund education, public infrastructure and local governments once again,” PAW reported.

In a news release after hours on June 30, EPA Administrator Michael Regan wrote, “As a public health agency, EPA’s number one responsibility is to protect people’s health, especially those who are on the front lines of environmental pollution. Make no mistake: we will never waver from that responsibility.”

“While I am deeply disappointed by the Supreme Court’s decision, we are committed to using the full scope of EPA’s authorities to protect communities and reduce the pollution that is driving climate change,” Regan stated. “We will move forward to provide certainty and transparency for the energy sector, which will support the industry’s ongoing efforts to grow our clean energy economy.”

Regan added, “EPA will move forward with lawfully setting and implementing environmental standards that meet our obligation to protect all people from all communities from environmental harm.”

Other Goshen County political leaders and oil, gas industry leaders could not be reached for comment in time for publication; but are encouraged to email reporter A. Marie Hamilton at [email protected] for public comment.

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