Clash over agency power reaches the Supreme Court

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Nov 10, 2023 View in browser   By Minho Kim and Pamela King Presented by The Supreme Court. | Francis Chung/E&E News The Supreme Court may be on the verge of eliminating a legal tool that for decades has helped the Environmental Protection Agency defend clean air rules and start to regulate climate pollution. A decision known as Chevron, a 1984 Supreme Court case that environmentalists lost, has in recent years become a target for conservative groups. The Chevron doctrine says that courts should give agencies some benefit of the doubt when they interpret laws like the Clean Air Act — the basis for EPA efforts to slash greenhouse gas emissions. If the justices go that route, they would be following about a dozen states that have eradicated or weakened the broad powers given to agencies within their own borders, Pamela King writes. Conservatives are hopeful that the Supreme Court, with its 6-3 supermajority of Republican appointees, will be sympathetic to their claims that the doctrine takes too much power from Congress and gives it to federal agencies that are far removed from the voters. 'Random judges' Groups supporting a rollback of Chevron say successful efforts to weaken agency deference in some states, including Arizona and Ohio, show that doing so at the federal level would not be catastrophic for federal protections of air, water and the climate. “The sky has not fallen,” said Jon Riches, vice president of litigation at the Goldwater Institute, which helped Arizona enact a law in 2018 to eliminate agency deference. Defenders of Chevron say that stripping broad regulatory powers from any administration, Republican or Democratic, places too much power in the hands of unelected federal judges with lifetime tenure and limited accountability to voters. “We’re going to have random judges ... exercising the control,” said Renée Landers, a law professor at Suffolk University. In recent years, Chevron has fallen out of favor at the Supreme Court. The federal government doesn’t cite the doctrine to defend its rules. The justices don’t mention it in their decisions. But some lower courts still apply Chevron to uphold federal rules, and conservative lawyers have asked the justices to stop them. The Supreme Court will hear arguments in their cases — Loper Bright Enterprises v. Raimondo and Relentless v. Commerce — in January.   It's Friday — thank you for tuning in to POLITICO's Power Switch. We're your hosts, Minho Kim and Pamela King. Power Switch is brought to you by the journalists behind E&E News and POLITICO Energy. Send your tips, comments, questions to mkim@eenews.net.   A message from bp: Across the US, bp supports more than 275,000 jobs to keep our energy flowing. Like building charging hubs for fleets of electric buses in California AND starting up new infrastructure in the Gulf of Mexico. See how else bp is investing in America.   Listen to today’s POLITICO Energy podcast Today in POLITICO Energy’s podcast: Kelsey Tamborrino breaks down how a tiny town that voted to oust local officials who backed tax breaks for a multibillion-dollar Chinese-affiliated battery plant sent a big message to President Joe Biden and his campaign managers.   GET READY FOR POLITICO’S DEFENSE SUMMIT ON 11/14: Russia’s war on Ukraine … China’s threats to Taiwan … a war in Gaza. The U.S. is under increasing pressure to deter, defend and fight in more ways — but not everyone agrees how. Join POLITICO's 3rd Annual Defense Summit on November 14 for exclusive interviews and expert discussions on global security and the U.S.'s race to bolster alliances and stay ahead of adversaries. Explore critical topics, including international conflicts, advanced technology, spending priorities and political dynamics shaping global defense strategies. Don’t miss these timely and important discussions. REGISTER HERE.     Manchin, Climate and the IRA Sen. Joe Manchin will leave a long list of energy policy accomplishments when he retires from the Senate at the end of his term. | Francis Chung/POLITICO An irony defines the legacy of Sen. Joe Manchin (D-W.Va.), a coal-state lawmaker who announced Thursday he won’t seek reelection in 2024. Manchin, a fierce supporter of the fossil fuel industry, will be most remembered for playing a critical role in passing Democrats’ climate law in 2022, writes Timothy Cama. Manchin has been one of the few Democratic voices pushing for an “all-of-the-above” energy policy that embraces both renewables and fossil fuels. But his eventual support of the Inflation Reduction Act, with about $400 billion to support an energy transition, allowed the law to pass without any Republican support. After signing the IRA into law, Biden handed Manchin the pen he signed it with. “Without Sen. Manchin, there probably wouldn’t have been an IRA,” said Robbie Diamond, president and CEO of the nonprofit SAFE, which advocates for domestic energy production. Manchin also pushed hard for building a domestic supply chain for cleaner industries, even if that slows down renewable energy and electric vehicle deployment, write Jame Bikales, Kelsey Tamborrino, Zack Colman and Ben Lefebvre. His insistence on building clean energy supply chains in the U.S. opened a door for new industries to replace high-emission businesses in states like West Virginia where coal businesses have declined. “He was able to make workers a central part of the conversation and not just simply emissions,” said Collin O'Mara, CEO of the National Wildlife Federation. “There’s a whole lot of workers in the energy industry that actually have a future now because of the work that he did.” Manchin has been a headache to climate-conscious Democrats and environmentalists hoping to rapidly cut carbon emissions. But his absence would be felt even to climate hawks, as Democrats face a tough Senate map in 2024. Manchin’s Senate seat is most likely to go to Jim Justice, the Republican governor of West Virginia who, like Manchin, has deep ties to the coal industry. “I think environmentalists will really miss him when he’s gone,” said Alex Trembath, deputy director at the Breakthrough Institute, a progressive think tank focused on climate issues.   A message from bp:   In Other News Climate migration: Australia offers residency to Tuvalu citizens displaced by climate change. Frenemies reunited: Former President Donald Trump turns to oil barons to boost his White House bid.   A message from bp: bp added more than $70 billion to the US economy last year, by keeping oil and gas flowing AND developing more lower carbon energy. It’s and, not or. See what doing both means for energy nationwide.   Subscriber Zone A showcase of some of our best subscriber content. U.S. Secretary of Energy Jennifer Granholm with Ukrainian Energy Minister German Galushchenko in Croatia on March 1. | AP The first U.S. direct air capture plant opens in California. Some Republicans say whale protections could raise gasoline prices. Others blame offshore wind for killing whales. Ukraine's energy minister floats potential attacks on Russian energy infrastructure. That's it for today, folks. Thanks for reading, and have a great weekend!   JOIN US ON 11/15 FOR A TALK ON OUR SUSTAINABLE FUTURE: As the sustainability movement heats up, so have calls for a national standard for clean fuel. Join POLITICO on Nov. 15 in Washington D.C. as we convene leading officials from the administration, key congressional committees, states and other stakeholders to explore the role of EVs, biofuels, hydrogen and other options in the clean fuel sector and how evolving consumer behaviors are influencing sustainable energy practices. 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