Last week, Indiana Attorney General, Todd Rokita, discussed with the National Press Club Indiana's participation in a 19-state lawsuit against the EPA that would limit the agency's ability to regulate carbon emissions. The question in West Virginia v. EPA is whether the Court of Appeals for the D.C. Circuit was correct in vacating a Trump-era EPA rule regarding carbon emissions. The rule in question did not include what is known as "generation shifting" in its final determination of the best system of emission reduction. "Generation shifting" is a system of emission reduction that occurs when the source of power generation shifts from higher-emission power plants to less-polluting sources of energy. The Trump-era EPA's rule only included more traditional efficiency improvements at coal-fired power plants and did not include these lower-emitting alternatives.

President Trump's rule had replaced an Obama-era EPA rule that had included generation shifting in its emissions regulations, and President Biden's EPA has signaled that it will issue a rule similar to the Obama-era rule. However, the Supreme Court wants to look at the issue first, setting up a potentially important pronouncement regarding the scope of the EPA's rulemaking authority. Critics of the approach taken by Presidents Obama and Biden argue that "generation shifting" is an unlawful attempt at completely reordering the nation's power grid by federal fiat. 

The states that are challenging the ruling see the issue as one of judicial and executive overreach. Attorney General Rokita stated that "the EPA's overstep in this situation — attempting to reshape the nation's electric grid — could easily lead to other agencies intruding into areas they don't belong simply because they don't agree with something . . . perhaps the court's ruling in this case could stimulate Congress to start doing its job and stop ceding its authority to the executive branch." 

The Supreme Court will hear oral argument on these important questions of environmental and administrative law on February 28, 2022. 

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