“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

On the last day of the Trump Administration, Trump DC Circuit judge Justin Walker argued that the Trump Environmental Protection Agency (EPA) was correct to repeal the Obama Administration’s regulations that limited greenhouse gas emissions from power plants, which was an important part of the effort to address climate change, although he argued that the EPA also did not have the authority to enact the weaker Trump plan for regulating coal-fired power plants. The DC Circuit majority rejected Walker’s view and ruled that the Trump EPA improperly repealed the rule on greenhouse gas emissions from power plants  in its January, 2021 ruling in American Lung Association v EPA.

In 2015, as part of its efforts to reduce greenhouse gases and deal with climate change, the EPA promulgated the Clean Power Plan (CPP), which aimed to very substantially reduce carbon emissions from power plants that have employed fossil fuels, particularly coal. Industry groups challenged the plan, and it was never implemented. Under President Trump, the EPA determined that it did not have the authority under the Clean Air Act (CAA) to adopt the strict CPP, and accordingly repealed the rule. In its place, the Trump EPA promulgated the Affordable Clean Energy Rule (ACER), which was much weaker; projections indicated that at most, ACER would reduce power plant carbon emissions “by less than 1%” by 2035. Several public health and environmental groups, joined by some state and local governments, challenged the Trump EPA’s actions in the DC Circuit court of appeals.

With a partial dissent by Trump judge Walker, the DC Circuit ruled that the Trump EPA had acted illegally. In a majority opinion of well over one hundred pages issued on the last full day of the Trump Administration, Judges Nina Pillard and Patricia Millett explained that the Trump EPA’s view that it did not have legal authority to adopt the CPP was based on a “fundamental misconception” and a “tortured series of misreadings” of the CAA and past precedent. The majority explained that the law actually requires the EPA to take steps to significantly reduce carbon emissions and greenhouse gases, and the EPA “may not shirk its responsibility by imagining new limitations that the plain language of the statute” does not impose. Since the EPA’s adoption of ACER was clearly based a least in part on its erroneous view of its responsibility and authority to combat greenhouse gases under the CAA, the court vacated the EPA’s actions, including its adoption of ACER, and sent the case back to the agency to determine what action is appropriate under current circumstances to reduce carbon emissions from power plants.

Trump judge Walker partly dissented. He agreed that ACER was invalid, but for essentially the opposite reason as the majority. According to Walker, the EPA “correctly repealed” the CPP, but did not have authority to promulgate even the limited carbon emission reductions contained in ACER. Walker asserted that this was so because under a different part of the CAA,  the EPA had “already regulated” power plants by requiring the reduction of mercury emissions by such plants, and the part of the CAA relied on to promulgate the CPP and ACER “excludes from its scope” the regulation of power plants. In addition, using a version of the so-called non-delegation doctrine, Walker argued that Congress had not “clearly delegated” to the EPA the authority to issue a “major rule” like the CPP with its “vast economic and political significance.”

The majority explained what was wrong with Walker’s claims, which were also raised by industry groups participating in the case. The “relevant statutory text,” they pointed out, contradicts the claim that the authority to regulate some pollutants from power plants under one section of the CAA somehow precludes the EPA from regulating carbon emissions from power plants under another part of the law. Indeed, they went on, there is “nothing in the legislative record even hinting” that this was Congress’ intent, and it is a “fundamental mistake” to claim otherwise. As to the “major rule” issue, the majority carefully explained that the EPA’s authority and responsibility to issue a rule like CPP has “long been recognized by Congress and judicial precedent.” The serious harm threatened by climate change does make the consequences of a rule like CPP very “significant,” the majority recognized, but the EPA’s adoption of such a rule reflects “Congress’ charge”, not “agency overreach.”

As experts have explained, the court’s decision recognizing the EPA’s authority will significantly benefit the Biden Administration’s efforts to tackle climate change, allowing it to  immediately “go on the offense,” rather than having to deal with a problematic action by the Trump EPA. Even as he was trying to uphold the Trump repeal of the CPP, however, Trump judge Walker has provided a chilling reminder that he and other Trump judges and justices will pose a serious threat to Biden Administration rules and other actions in this area.