Volts podcast: Jay Duffy on the Supreme Court's EPA decision
In this episode, lawyer Jay Duffy, who represented environmental groups in West Virginia v. Environmental Protection Agency, explains the ins and outs and potential implications of the Supreme Court’s final ruling in the case.
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Text transcript:
David Roberts
On June 30th, the Supreme Court handed down a ruling in the case of West Virginia v. Environmental Protection Agency. There was a great deal of dread in the climate community in advance of the ruling, and a great deal of hyperbolic coverage in its wake. But what did it actually say?
Volts listeners will already be familiar with the case thanks to a pod I did on it a few months ago with Jack Lienke and Kirti Datla, and they will recall that it was somewhat bizarre for the court to take this case at all, since it regards a set of regulations that never were and never will be put into effect. Rather, the court seemed eager to pass judgment on the legal justification that it anticipates EPA might use when regulating greenhouse gases under Biden. It was, in other words, an advisory opinion, which the Supreme Court is not supposed to do.
Nonetheless, it took the case and now it has ruled. The headline is that the majority opinion is not as bad as many anticipated, especially in the wake of the unhinged Dobbs decision that overturned Roe v. Wade. This was a Chief Justice Roberts special, carefully parsed and hedged.
To get clear on what the ruling does and doesn't actually say, I contacted one of the lawyers on the case, Jay Duffy of the Clean Air Task Force. Duffy was responsible for several of the key briefs and arguments in the case, so I thought he would have a good read, not only on what the Roberts decision says, but what it portends for subsequent cases.
So, without further ado, Jay Duffy, welcome to Volts. Thanks for coming.
Jay Duffy
Thanks so much, David. It's a pleasure to be here. Thank you for asking me to come on.
David Roberts
Let's start just really briefly, tell us about your involvement in the case.
Jay Duffy
Sure. So I represent a number of environmental and public health groups. American Lung Association, American Public Health Association, Appalachian Mountain Club, Cleaner Council, Clean Wisconsin, Conservative ... "Conservative no", Conservation Law Foundation, and Minnesota Center for Environmental Advocacy. We challenged the ACE rule in the CPP repeal when it came out in the DC Circuit. I argued a portion of that oral argument on a nine hour zoom call. Yeah, I hope this pod won't be as painful as that was. We won below, and then that was, of course, appealed by State Attorney General and coal interest, and I continued to represent the same clients before the Supreme Court.
David Roberts
So at a headline level, everybody saw the Dobbs ruling, which was a Sam Alito special, i.e. completely unbound, and unrestrained, and deranged, and I think were subsequently filled with fear about this ruling. But this is a Roberts decision, not an Alito decision. And it seems to bear the sort of typical characteristics of a Roberts decision, in that it is sort of a little bit of this, a little bit of that, kind of trying to cut it down the middle, not quite dramatic, slightly more technical, slightly more narrow. So am I right in thinking that in the spectrum of outcomes that climate people anticipated or imagined, this is toward the better side?
Right. This is one of the better outcomes we could have envisioned. Is that roughly right?
Jay Duffy
That's roughly right. I think there are two kind of lanes in this decision. There is what is the path forward for regulating greenhouse gases from power plants? A
