The Biden administration will release plans to regulate emissions from power plants this week—a move almost certain to spark a legal battle.
Plus, it’s pretty much par for the course for EPA rules to be dragged back and forth to court. “Virtually everything the EPA does is challenged in court,” Gerrard said. “One side or the other sues—sometimes both.”A real sticking point that challengers are likely to exploit is what’s known as the major questions doctrine, a statutory principle that the Supreme Court solidified in its ruling last year.
“We don’t know how major is major,” Gerrard said. “And we don’t know how explicit the direction of Congress needs to be.” Challengers could argue that points of Biden’s plan—including its reliance on carbon capture and storage technology, which is currently extremely expensive and yields spotty results—lay outside of Congress’s explicit direction to the EPA with regards to regulating power plants.
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