Epa Rollback May Worsen Trump’s Supreme Court Climate Headache

The Trump administration's move on Monday to undo EPA climate rules could further complicate another wing of its strategy to quash U.S. greenhouse gas policies — its Supreme Court bid to derail lawsuits seeking to make oil producers pay for climate change.

The administration has made its authority over greenhouse gas emissions central to its argument against climate lawsuits playing out in state courts. On Monday, it ceded more of that authority by formally rescinding EPA's carbon rules for power plants, the largest industrial source of U.S. climate pollution.

Lawyers watching the administration's parallel strategies say Monday's move may make the Justice Department's Supreme Court case harder by undercutting its legal theory that EPA is in charge of climate regulation.

“I assume when we see today's proposal, there will be some discussion and some fancy footwork about how the Clean Air Act continues” to block state climate action, said Sean Donahue, an attorney with Donahue, Goldberg, Herzog and Davidson, who has defended federal limits on carbon pollution from power plants.

“But I think in practice,” he said, “it makes it harder to have that be a credible argument.”

EPA Administrator Lee Zeldin said Monday he would refer any questions about litigation to DOJ, but argued that Congress had been “purposeful” in excluding climate from the Clean Air Act and that his agency was following the law "to the T."

"I care deeply in our Constitution, our rule of law, our process," he said, "and I've read these laws and I've read these Supreme Court decisions.”

DOJ has said it does not see any conflict with its decision to rescind climate rules and its Supreme Court argument that state-level climate lawsuits interfere with the federal government’s job.

“We don't see any contradiction in the government's position,” Adam Gustafson, head of DOJ’s energy division, told POLITICO in a recent interview. “There are lots of ways for the federal government to win.”

DOJ's strategy will be put to the test in early October, when administration attorneys will appear alongside oil companies at the Supreme Court to argue that the justices should put the kibosh on dozens of state court lawsuits that — if successful — would force companies like ExxonMobil, Chevron and Suncor Energy to pay billions of dollars for contributing to climate change.

Ahead of the argument, Trump’s DOJ has said in court papers that EPA — not the states and cities behind the climate lawsuits against oil producers — is the primary regulator of greenhouse gases.

In a May Supreme Court filing, DOJ said EPA still retained authority over some industrial sources of greenhouse gas emissions. The government’s brief said that EPA had recently concluded through its rollback of the so-called endangerment finding that it couldn’t set climate rules for motor vehicles — but hadn’t said the same about stationary sources like power plants.

That’s expected to change with Monday’s rollback.

West Virginia Solicitor General Michael Williams, who supports the Trump administration’s position at the Supreme Court, said federal common law and the Constitution still prevent state and local governments from regulating interstate emissions.

DOJ’s Supreme Court argument “is just as strong today as it was yesterday,” Williams told POLITICO on Monday.

Donahue called Trump officials “maximalists” on decimating federal regulators’ power.

“The fact that it creates problems for some of their legal arguments is just, they'll just deal with it,” he said.

Niina H. Farah and Shelby Webb contributed to this report.