Georgetown Law Professors and Students Prepare for Upcoming Supreme Court Arguments on Greenhouse Gas Regulations
February 24, 2022
Early in its current term, the U.S. Supreme Court agreed to hear a quartet of environmental law cases, consolidated under "West Virginia v. Environmental Protection Agency." The Court’s ruling in this high-profile case could have major implications for the EPA’s authority to regulate greenhouse gas emissions — and for federal regulation more generally.
On Jan. 25, Georgetown Law’s Environmental Law & Justice Clinic filed an amicus brief in support of the EPA on behalf of the nation’s leading physician member medical organizations and public health school deans and directors.
“When the court granted review of West Virginia v. EPA, there were discussions fairly quickly within the environmental community that an amicus brief dedicated solely to the public health effects was necessary,” said clinic director Sara Colangelo (L’07). “I was honored that our clinic was tasked for this role in such an important case.”
As oral arguments in the case approached, Georgetown Law’s Supreme Court Institute (SCI) then convened a panel discussion among preeminent environmental lawyers, including Georgetown’s own Lisa Heinzerling, the Justice William J. Brennan, Jr. Professor of Law. Heinzerling served as lead author of the winning briefs in the landmark case Massachusetts v. EPA, in which the Supreme Court held that the Clean Air Act gives the EPA authority to regulate greenhouse gases.
The Supreme Court Institute also held two moots on West Virginia v. EPA, with lawyers who would soon be arguing the case before the real Supreme Court test-driving their presentations before panels of professors and lawyers representing the justices. As with all of the SCI’s Supreme Court moots, students had the opportunity to sit in the audience.
And, on the day of the actual hearing, Georgetown’s Environmental Law and Policy Program will host a livestream “listening party” so that students can hear and discuss the oral arguments in real time.
These kinds of activities provide invaluable opportunities for Georgetown Law students to gain a close-up view of the most pressing issues facing environmental lawyers today. “When I was choosing a law school, Georgetown offered the best of both worlds,” said Hali Kerr (L’17), now an attorney-advisor at EPA.
“It was the breadth and the depth of experiences I could have that drew me in.”
Not surprisingly, a significant number of amicus briefs have been filed in West Virginia v. EPA in support of both petitioners and respondents. “The American Thoracic Society, a longtime client of the clinic, first got us involved in the case,” Colangelo said.
“ATS showed early leadership in advocating around the issue of regulatory authority concerning climate pollution, because of the public health effects being so dire.
“We think this particular brief really represents the collective medical expertise on this issue,” Colangelo continued, noting that 17 physician member organizations, including the American Medical Association, and 42 public health school deans and directors signed on to the brief.
Colangelo, who previously served as a trial attorney with the Environment and Natural Resources Division at the U.S. Department of Justice, shares the concern of many environmental lawyers that the West Virginia case is not the appropriate vehicle to rule on the scope of EPA’s authority to tackle greenhouse gas pollution under the Clean Air Act.
The SCI panelists reflected that concern. “I think this case is clearly moot,” said E. Donald Elliott, EPA general counsel under President George H.W. Bush, during the panel discussion. As Elliott explained, the EPA is currently developing new rules to replace clean energy plans created under the Obama and Trump administrations.
“From my standpoint, that’s enough to resolve the case,” said Elliott, currently an adjunct professor at George Mason University’s Antonin Scalia Law School. “If the court reaches the merits, they’re giving an advisory opinion.”
If the Court does in fact decide on the merits, many legal experts predict that the justices will invoke the so-called “major questions” doctrine to place strict limits on the rulemaking authority of all administrative agencies in matters of “vast economic and political significance.”
Noting that the doctrine has now begun to permeate the lower courts, Lisa Heinzerling made her views clear during the SCI panel. “The Court is not only smuggling in this incredibly subjective — and I would say not just weaponized but aerosolized — doctrine,” she said, “but it’s done it in a really biased way.”
Looking beyond the immediate outcome of West Virginia v. EPA, Colangelo sees hope for the future in the upcoming generation of environmental lawyers, many of whom she helped train as former director of Georgetown Law’s Environmental Law Program.
“I think there is a fantastic cohort of environmental justice-seekers, including law students, who will continue to get creative using other mechanisms to drive change,” she said. “That type of subnational work could include state statutes, technical innovation and private sector action.”
Scott Novak (L’20) points to his experience in a 3L practicum with Professor Vicki Arroyo, founder of the Georgetown Climate Center and current EPA Associate Administrator for Policy, as a formative experience in thinking creatively about environmental issues. “We were working on this new cap-and-invest policy for transportation fuels. I got to work with multiple states and completed research that helped inform policy decisions.”
Novak now advises a variety of clients on cap-and-invest policy as an associate at Baker Botts. “It’s something Georgetown helped open my eyes to about working in the private sector,” he said. “I remember Professor Colangelo saying in a seminar that environmental laws are not intuitive — companies need people who are familiar with the laws to help them comply.”
Both Novak and fellow graduate Hali Kerr single out the mentorship of Georgetown faculty members as critical to their professional development. “Everyone I came across was so willing to meet in office hours, exchange an email, talk after class,” Kerr said. “Georgetown is very lucky to have those people, and it shows in the quality of the program.”
Watch the SCI’s pre-argument panel discussion of West Virginia v. EPA: