The Biden administration’s climate rule for power plants dodged a bullet at the Supreme Court this week. But the reprieve is likely temporary as the executive branch confronts the fallout from the court’s recent moves to restrict agencies’ authority. The justices decided to keep the rule in place, for now, as lower courts consider EPA’s authority to limit the power sector’s planet-warming emissions. But the court’s conservative supermajority also signaled a willingness to strike down the rule later — which would be in line with a string of recent decisions restricting agency powers, write Niina H. Farah and Lesley Clark. Rule recap: The regulation aims to curb carbon pollution from new natural gas and existing coal-fired power plants. It requires the power sector to either adopt technology that captures emitted greenhouse gases before they reach the atmosphere or close heavy-polluting plants. Justice Brett Kavanaugh said immediately pausing the rule, as its challengers wanted, is unnecessary because compliance does not start until June. Therefore, he wrote, the rule’s challengers are “unlikely to suffer irreparable harm” as litigation over the regulation makes its way through the U.S. Court of Appeals for the District of Columbia Circuit, which has fast-tracked the case. When it comes to the contents of the challenge, Kavanaugh appeared sympathetic, saying the applications “have shown a strong likelihood of success on the merits as to at least some of the challenges to the Environmental Protection Agency’s rule.” Justice Neil Gorsuch agreed, and Justice Clarence Thomas indicated that he would have immediately blocked the regulation. From air to water: The Supreme Court also appeared prepared Wednesday to restrict EPA’s power when it comes to the Clean Water Act. The justices heard oral arguments in a case over whether EPA needs to get more specific about the level of pollution that sewage and stormwater systems can send into the nation’s water. San Francisco argues that the permit for its wastewater treatment plant is too generic in barring the city from violating water quality standards. If the city prevails, it could make it harder for EPA to write and enforce permits. The court’s conservative justices grilled EPA officials on why they sometimes rely on generic provisions, with Chief Justice John Roberts comparing it to what he called the “bad old days” before Congress enacted the Clean Water Act. “The danger here is you’re going back to the other system because one gives more power to you because you don’t have to tell the people who are discharging what they have to do or not,” he said. “You can sit back.”
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