As the arguments in the most important Supreme Court environmental battle of the decade come to an end, the team of lawyers is already making their case for how judges should view the EPA's climate authority.
When the justices take the bench to hear arguments in West Virginia v. EPA on February 28, they will arrive armed with information from briefs prepared by some of the nation's leading environmental lawyers.
Those lawyers' arguments will lay the groundwork in a high-stakes case that has the potential to bolster the EPA's ability to regulate greenhouse gases from power plants -- one of the nation's biggest sources of carbon dioxide emissions.
The challenge — brought by Republican-led states and coal companies — asks the Supreme Court to overturn a decision by the US Court of Appeals for the Columbia Circuit, which replaced a Trump-era EPA rule with an Obama-era clean energy plan. influenced. ,
The 2015 Obama regime invoked the EPA's authority under the Clean Air Act to set systemwide requirements for power plant emissions reduction.
After the DC Circuit's decision, President Biden's EPA had a clean slate to draft its own rule. The agency had said it would not return to the Clean Energy Plan, a target of which has already been met by the power sector, even though the regulation never went into effect.
The judges then took the unusual step of agreeing to hear a dispute over a regulation that does not technically exist.
His decision in the case, which is expected by next summer, could not only prevent the EPA from issuing a sweeping new carbon rule but also prevent Congress from delegating broad regulatory authority to federal agencies.
Here are some lawyers to know at this year's High Court climate slugfest:
See lindsey
Leading the briefing for West Virginia is the state's Solicitor General Lindsey C.
The coal-rich state, which included 18 others, filed the first petition for the Supreme Court to weigh in on the EPA's climate authority. This was followed by three other petitions, which have now been consolidated into one larger case.
See has served as West Virginia's principal litigator since 2017 and previously as an associate at Gibson, Dunn & Crutcher LLP, a firm with a major Supreme Court practice.
She has appeared once before the nation's highest bench in a 2018 case related to a discrimination challenge against exemptions in the West Virginia tax law that protected state and local -- but not federal -- employees from being taxed on their pension benefits. West Virginia lost the case.
West Virginia Attorney General Patrick Morrisey (R) and other state attorneys said the DC circuit should not have allowed the EPA to regulate power plant emissions under a "rare use, ancillary provision of the Clean Air Act." He referred to section 111(d) of the statute, which served as the basis for the carbon law.
"Except for a few general factors EPA had to take into account, the lower court told EPA that it has no limits on emissions-related measures — on any economic sector or almost any actor," states most say. A recent brief, which was signed by See.
See is a graduate of Harvard Law School and clerk for former DC Circuit Judge Thomas Griffith.
Paul Sebi
Another state has echoed the arguments of West Virginia in a petition and brief led by an attorney, which has been involved in the EPA carbon rule fight since the days of the clean energy plan.
Paul Sebi, a shareholder in the firm Greenberg Trourig LLP and special assistant to North Dakota Attorney General Wayne Steinhazem (R), signed a brief stating that the D.C. Circuit ruling "removes the cooperative federalism framework carefully crafted by Congress." weakens". The EPA -- rather than the states -- can set power plant performance standards.
North Dakota v. EPA is one of four petitions in the Consolidated Supreme Court case.
SEBI has previously argued against the EPA carbon rules, when the clean power plan preceded the DC circuit. The court conducted a marathon argument over regulation in 2016, but never reached a verdict.
Earlier that year, the Supreme Court blocked the rule from taking effect, which allowed the Trump administration to overturn it.
SEBI holds a bachelor's degree from the University of San Diego and a law degree from Lewis & Clark College.
Andrew Grossman
One of the other major petitioners in the climate case, Westmoreland Mining Holdings LLC, hired Andrew Grossman to make its case in the High Court.
Grossman leads Beckerhostler's appellate practice and is a frequent conservative commentator on a wide range of administrative and constitutional issues.
Grossman is an assistant scholar at the liberal Cato Institute and a former legal analyst at the Heritage Foundation. He is also a well-known face on Capitol Hill, having testified several times before the House and Senate Judiciary Committees.
In Westmoreland's petition, Grossman referred to a killer question to some environmental advocates: whether Section 111(d) can be used to create performance standards for existing stationary sources under the EPA provision's "hazardous air pollutant" program. Can do.
The judges, along with others, approved the petition, but said they would only consider the second question posed by Westmoreland's petition: whether the EPA's carbon rule violated the key question principle, which allows federal agencies to consider "huge economic and political issues of importance".
Grossman attended Dartmouth College and George Mason University's School of Law.
Yako rotho
The fourth petition in the consolidated case comes from North American Coal Corp, represented by Jones Day Partner Yaakov Roth.
Like the other challengers, the coal company argues that the EPA and the DC circuit have taken a too broad view of the federal climate authority under the Clean Air Act.
Roth comes with a lot of experience before the Supreme Court in the EPA climate case. He was the brainchild behind an argument that led to the Supreme Court overturning a conviction in the New Jersey "Bridgegate" scandal.
He has also fought to preserve restrictive voting laws in Arizona and to eliminate the Obama-era Affordable Care Act.
Roth has clerked for the late Supreme Court Justice Antonin Scalia and a federal appeals court judge.
He is a graduate of Harvard University and York University.
Elizabeth Prelogra
Before the Supreme Court agreed to hear West Virginia v. EPA, Elizabeth Preller argued on behalf of the federal agency that it was too early for the judges to get involved.
The solicitor general noted in a brief filed in August that Biden's EPA has not yet written a new carbon rule and that Obama has no plans to revive it.
The EPA instead intends to issue a new rule "taking into account all relevant considerations, including changes in the power sector during the past several years," she wrote.
Prelogger, who was confirmed in late October, has already appeared before the Supreme Court several times, including in a case in which she argued on behalf of the federal government against abortion laws in Mississippi and Texas.
Since his appointment as acting solicitor general in January, Preller has led Supreme Court briefings on several environmental matters, including one that the Biden administration sought to acquire state-owned land in New Jersey. Has supported the efforts of the developer of the PenEast Natural Gas Pipeline. EnergyWire, March 10, 2021). The pipeline company won its case, but the project was eventually cancelled.
A graduate of Harvard Law School, Preloger has previously worked as an assistant to the Solicitor General and worked in private practice. During a prior stint at the Justice Department, he served on the Special Counsel investigation into Russian interference in the 2016 election.
He clerked for Attorney General Merrick Garland when he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit and for Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan.
Preloger is the second woman to become Solicitor General. Kagan was the first.
Sean Donahue
Environmental groups supporting the broader EPA regulatory authority have turned to an experienced Supreme Court litigator to represent them in the case: Sean Donahue.
Donahue has been a well-known advocate for environmental groups and public health advocates in some of the most high-profile lawsuits of the past decade, including those involving the Clean Air Act and climate cases.
He has also represented environmentalists in key cases on the social cost of carbon for fuel economy and vehicle emissions standards.
Donahue and her team, including Vicki Patton of the Environmental Defense Fund, will face a daunting task. Several conservative justices have indicated skepticism of the principles that they need to defer to agency expertise, and the current case appears to be a coordinated effort to broadly undermine the EPA's regulatory authority.
In an interview, Donahue once again stated that this may be an environmental matter that sets an important precedent for administrative law.
"Statutes such as the Clean Air Act," he said, "rely on specialist agencies to enforce Congress's health and environmental directives for developing technologies, especially the complex factual record about particular industries and pollutants."
Donahue, who works for Donahue, Goldberg and Littleton, clerked for former Supreme Court Justices Ginsburg and John Paul Stevens. He is also a veteran of the Department of Justice. He attended Columbia University and the University of Chicago Law School.
Beth Brinkman
Another lawyer with Supreme Court experience is making the case for electric utilities that want to preserve the DC circuit's ruling that reduced the Trump-era carbon rule.
Before the judges approved the case, Covington & Burling LLP partner Beth Brinkman led a brief on behalf of Consolidated Edison Inc. and other companies, calling for the Supreme Court's review of the non-existent regulation "to the actual circumstances." run the risk of "immoral governance".
Furthermore, she wrote, red states and coal companies are seeking relief from justice even after the power industry achieved the Clean Energy Plan's 2030 emissions reduction target more than a decade ago — even though the rules never officially took effect.
"Those changes, including a reduction in the cost of emissions reduction technologies and increased consumer preferences for clean electricity, have only accelerated since the adoption of the ACE rule," she wrote.
Brinkman has argued before the Supreme Court more than two dozen times. For example, as the former deputy assistant attorney general in the Civil Rights Division of the Justice Department, he defended the Obama administration's Affordable Care Act.
He has also served in appellate practice at the firm Morrison & Foster and represented impoverished criminal defendants as an assistant federal public defender.
Brinkman is a graduate of the University of California, Berkeley and Yale Law School. He clerked for the late Supreme Court Justice Harry Blackmun.
Albert Lino
A utility industry group that opposes the EPA's ability to formulate regulations such as the Clean Energy Plan has appointed its legal team, along with an attorney, who, at just 43 years old, to the Supreme Court to have a significant impact on environmental law. is inserted.
Albert Lynn was the lawyer who secured the unprecedented stay of President Obama's climate regulatory regime, the Clean Power Plan, in 2016 while he was West Virginia's solicitor general.
Lin said in an interview that his interest in environmental and administrative law was born out of necessity when he was the Solicitor General of West Virginia. This was during Obama's second term, and the administration was promulgating a number of major environmental regulations, including the Clean Energy Plan.
"Environmental regulations were of vital importance to the state," he said.
Now in private practice at the firm Hunton Andrews Kurth LLP, Lin is back in an EPA carbon rule lawsuit, representing Power of America, a trade association of companies that produce electricity from coal.
Lin, the son of Taiwanese immigrants, has also argued in the High Court on key cases of the Clean Water Act. He argued in a case on behalf of Maui, Hawaii, whether a federal permit is needed for pollution that is pumped underground but eventually reaches the ocean.
The Supreme Court delivered a new test to determine whether permits are required, and a federal judge in Hawaii later argued with environmental groups that Maui should receive Clean Water Act approval (Greenwire, Oct. 2021). Legal experts say they are looking to see how other courts implement the Supreme Court's trial.
Lynn attended Yale for undergraduate and law school, and she clerked for a federal appeals court judge and Supreme Court Justice Clarence Thomas.