Earlier this year, the U.S. Supreme Court in West Virginia v. EPA ruled that the Clean Air Act does not authorize the EPA to require a systematic shift to cleaner sources of electricity generation. Many fear this decision will be devastating to the agency’s and the executive branch’s ability to move the U.S. away from carbon-intensive energy sources and toward cleaner resources to address climate change in the accelerated timeline necessary to avoid its worst impacts. So, in this episode, Chad Reed sits down with Max Rodriguez, an attorney with Pollock Cohen and the primary author of an amicus curiae brief on behalf of 192 Members of Congress supporting the EPA’s authority to regulate carbon emissions under the Clean Air Act. Max discusses in depth the history and justiciability of the case, the major questions doctrine underpinning it, the potentially far-reaching implications of the decision and the related non-delegation doctrine for federal environmental regulations going forward, and much more. Importantly, the Inflation Reduction Act, which passed after this episode was recorded, amends the Clean Air Act to add several specific new programs to reduce greenhouse gas emissions and provide funding to the states to develop their own plans. Taken together, these provisions go a long way towards addressing the view of the 6-3 majority in West Virginia v. EPA that Congress has not been clear enough regarding the EPA’s authority to tackle climate change. However, the new law may still fall short of granting EPA the authority to revive the generation-shifting approach struck down by the Court in this case.
Earlier this year, the U.S. Supreme Court in West Virginia v. EPA ruled that the Clean Air Act does not authorize the EPA to require a systematic shift to cleaner sources of electricity generation. Many fear this decision will be devastating to the agency’s and the executive branch’s ability to move the U.S. away from carbon-intensive energy sources and toward cleaner resources to address climate change in the accelerated timeline necessary to avoid its worst impacts.
So, in this episode, Chad Reed sits down with Max Rodriguez, an attorney with Pollock Cohen and the primary author of an amicus curiae brief on behalf of 192 Members of Congress supporting the EPA’s authority to regulate carbon emissions under the Clean Air Act. Max discusses in depth the history and justiciability of the case, the major questions doctrine underpinning it, the potentially far-reaching implications of the decision and the related non-delegation doctrine for federal environmental regulations going forward, and much more.
Importantly, the Inflation Reduction Act, which passed after this episode was recorded, amends the Clean Air Act to add several specific new programs to reduce greenhouse gas emissions and provide funding to the states to develop their own plans. Taken together, these provisions go a long way towards addressing the view of the 6-3 majority in West Virginia v. EPA that Congress has not been clear enough regarding the EPA’s authority to tackle climate change. However, the new law may still fall short of granting EPA the authority to revive the generation-shifting approach struck down by the Court in this case.
Links:
West Virginia v. Environmental Protection Agency
Brief of 192 Members of Congress as Amici Curiae in Support of Respondents
Episode recorded: August 8, 2022
Chad Reed: This is Climate Positive – a show featuring candid conversations with the leaders, innovators, and changemakers driving our climate positive future. I’m Chad Reed
Hilary Langer: I’m Hilary Langer.
Gil Jenkins: I’m Gil Jenkins.
Max Rodriguez: Fundamentally, there are just so many features to solving the climate crisis and certainly law is one of them, but there's also the political angles, and getting voters interested in the issues, and the actual policy, and businesses developing new products, and technologies, and services, and then activists pushing all these different constituencies forward on this issue.
Chad: Earlier this year, the U.S. Supreme Court in West Virginia v. EPA ruled that the Clean Air Act does not authorize the EPA to require a systematic shift to cleaner sources of electricity generation. Many fear this decision will be devastating to the agency’s and the executive branch’s ability to move the U.S. away from carbon-intensive energy sources and toward cleaner resources to address climate change in the accelerated timeline necessary to avoid its worst impacts.
So, in this episode, I sit down with Max Rodriguez, an attorney with Pollock Cohen and the primary author of an amicus curiae brief on behalf of 192 Members of Congress supporting the EPA’s authority to regulate carbon emissions under the Clean Air Act. Max discusses in depth the history and justiciability of the case, the major questions doctrine underpinning it, the potentially far-reaching implications of the decision and the related non-delegation doctrine for federal environmental regulations going forward, and much more.
Importantly, the Inflation Reduction Act, which passed after this episode was recorded, amends the Clean Air Act to add several specific new programs to reduce greenhouse gas emissions and provide funding to the states to develop their own plans. Taken together, these provisions go a long way towards addressing the view of the 6-3 majority in West Virginia v. EPA that Congress has not been clear enough regarding the EPA’s authority to tackle climate change. However, the new law may still fall short of granting EPA the authority to revive the generation-shifting approach struck down by the Court in this case.
Hilary: Climate Positive is produced by Hannon Armstrong, a leading investor in climate solutions for over 30 years. To learn more about our climate positive journey, please visit HannonArmstrong.com.
Chad: Max, thanks for joining us today.
Max: Thanks for having me.
Chad: Before we jump into the topic at hand, let's discuss your journey into this space. After graduating from NYU law school, you clerked for Judge Denise J. Casper on the United States District Court for the District of Massachusetts and Judge O. Rogeriee Thompson on the United States Court of Appeals for the first circuit. What is clerking for a federal judge like, and why did you pursue that path?
Max: It's funny because we had a meeting with our summer associates last week to talk about the experience and to encourage them to try to get the experience of clerking. For me, both of those clerkships were some of the best experiences of my career. Early on in your career, I was 28 and about a year and a half out of law school at the time, this person with enormous responsibility is trusting you to help them consider these really complicated issues to make decisions and draft opinions. At that young age, one of the most thrilling and challenging things you can possibly do.
I remember in my clerkship for Judge Casper, the first opinion I wrote was actually a pretty clear-cut issue. I sat down, and I was maybe a week into the job. I just realized I'm writing a draft of a decision that's going to become law. Who gave me permission to do this? Over time you get that confidence to learn new issues, to push yourself, and to become the best writer you can working with these bosses that you deeply respect and admire and learning how they tackle this incredibly difficult job and develop their own writing style, their own temperament, and they both had a huge influence on me.
Chad: You've also, and more recently, worked with a variety of stakeholders on environmental issues in matters before appellate courts and the Supreme Court. In the Supreme Court's recent West Virginia versus EPA case, you were the primary author of an amicus curiae brief on behalf of 192 members of Congress supporting the EPA's authority to regulate carbon emissions under Section 111(d) of the Clean Air Act. How and why did you get involved in this effort?
Max: It goes back to an old adage, which is basically you never know when the phone is going to ring. Pollock Cohen the firm I work at is a pretty new firm that has more of a flexible startup mentality. We were in the process of building out our appellate practice. In addition to me, we have two other former federal appellate clerks. We've also, since we filed that brief, added a former solicitor general of Vermont to the team. Basically, what happened was the petitioners who are ultimately the ones that won in the case, that's West Virginia and North Dakota, North American Coal Company and Westmoreland Mining Company, and their amici, their friends of the court, filed first in the Supreme Court.
Among those amici briefs, there was a brief that was filed by 91 Republican senators and representatives that argued that Congress had never intended for Section 111(d) of the Clean Air Act, which was the section at issue in the case, to be used for generation shifting in electricity the way it was proposed to be used in the Clean Power Plan. There were some democratic senators and representatives that after that brief was filed wanted to be sure to offer a rebuttal to that and make a clear recitation of Congress's meaning and the purpose of Section 111(d) in the Clean Air Act. The fun of a moment like that is we got connected with a little over two weeks before the filing deadline.
Nice to make it exciting right at the end. Although, unfortunately, the court went the other way, we're incredibly proud of the brief, and we feel we put together a strong brief analyzing the law of the Clean Air Act, and situating it in the context of all these other things that Congress has done in the last several years to address climate change. We started with those handful of members and working closely with some really amazing congressional staffers who really eat, sleep, and breathe these issues. Ultimately, we were able to get 192 senators and representatives to sign on to the brief.
Chad: What do you see as the role of the legal profession in the broader climate action movement?
Max: I think in a certain respect, it's like anything else. I think in my experience if there is anything I've learned as a lawyer, it's that it's absolutely essential to know that you're just a piece of the puzzle. Whether that's working with a business, working on an issue of public impact or with an individual, you have to have that broader perspective about your role and other roles that are important to advancing the issues. Professionally, I'm a litigator. The thing I do best is to be a voice and a counselor for clients who need me to put their best foot forward in these what can be very complicated processes, whether that's in court, in negotiations, or coming forward to report a wrongdoing to the government as a whistleblower.
Fundamentally, there are just so many features to solving the climate crisis and certainly law is one of them, but there's also the political angles, and getting voters interested in the issues, and the actual policy, and businesses developing new products, and technologies, and services, and then activists pushing all these different constituencies forward on this issue. Fundamentally, what I see my role as is, like I would with any other client, to listen, to learn as much as I can. When I do that, it opens me up to observe, to be flexible and creative about how I might be able to use the law to help make a difference for my client and for the greater good.
Sometimes that means you come up with a great idea, and you're out in front using that idea to help make a difference. Also, sometimes it means observing that maybe there are other paths to achieving the goal.
Chad: Well said. Now, let's jump into the case in West Virginia versus EPA. The Supreme Court ruled six to three that the Clean Air Act does not authorize the EPA to create a Clean Power Plan – in other words, to set standards for emissions from existing power plants with a view to encouraging generation shifting of electricity production toward sources that emit less carbon dioxide and other greenhouse gases. Many claim this decision will be devastating to the agencies and the broader executive branch's ability to move the country away from carbon intensive energy sources and toward cleaner resources to address climate change. Before we fully dive into the merits or lack thereof of this decision, let's talk about the case history and how we got to this place.
Max: We wind the clock back now, two presidential administrations to the Obama administration, at the end of the Obama administration having failed to get the cap-and-trade system through Congress. They looked to their authorities under the Clean Air Act through the EPA. In 2015, they promulgated what was called the Clean Power Plan. In 2016, that was immediately challenged in the court, and the Supreme Court stated and prevented it from ever going into effect. I don't know if you've ever heard the term shadow docket discussed with respect to the Supreme Court recently. That term was coined a few years ago.
Actually, that stay in 2016 was considered the first sweeping and substantive ruling on the procedural docket that is now sarcastically referred to as the shadow docket. The use in that respect to affect the significant political and economic issues through the procedural docket has really only taken off since that first decision with the Clean Power Plan. Then the court has stayed it. 2016, there was an election, which you may have heard about as well. Then the next president, Trump, comes into office and he moved forward through his leadership in the EPA to then rescind the Clean Power Plan and announced his own plan, which for short was called the ACE rule, the Affordable Clean Energy rule.
Then there were a number of groups, both industry groups, nonprofits, and others who challenged that new rule in court. The DC Circuit took that issue up, and rescinded the Trump plan right at the end of the Trump administration before Biden had come into office. Then when the calendar turned again to 2021, now the EPA is in the hands of the Biden administration. The Biden administration has to decide what to do. The Biden administration says that it doesn't plan to implement the Clean Power Plan, the Obama era regulation. They would instead go back to the drawing board and try to come up with a new plan.
In response to that, West Virginia and North Dakota, two reasonably famous conservative states, as well as a couple of greenhouse gas emitting power companies that I had mentioned sought a certiorari in the Supreme Court asking the Supreme Court to rule on the matter, basically, appealing the DC Circuit. Then the Supreme Court decided to take up the case and jump in based on, we can get into this more, but a pretty technical understanding of whether or not the issue was justiciable. Even though in the reality of it, the Biden administration had already said, "We're not going to implement the Clean Power Plan." There isn't really anything to fight over here.
Chad: Whether we agree with the justiciability of this case or the prudence of the Supreme Court ruling on it, it did. What specifically did the ruling find?
Max: First off, there was the question of whether or not there was standing. As a preliminary matter when they decide to take the case, they have to evaluate that issue. Then the issue was raised again on the merits of the case, the respondents, which includes the government and a number of more sustainability-focused power companies and some other entities were taking the argument that in addition to on the merits, EPA has the power to do this. That the case shouldn't be heard, that there was no standing or that it was a moot case. I'm not sure whether you ever wanted to go to law school. We can take you through a little tour that includes a little bit of first-year civil procedure and a little bit of advanced federal courts together. The first concept here is standing.
Standing is essentially the requirement for bringing a case to court at all. The short version is basically you're supposed to only use the courts to address tangible injuries caused by the defendant that you're suing, and that the court could, in some way, fix that injury. Here, Chief Justice Roberts' majority opinion concluded there was standing at least for West Virginia and North Dakota because the states would have to implement the Clean Power Plan if the Clean Power Plan were implemented. Because as a technical matter, they had concluded that it was procedurally possible for the Clean Power Plan to go into effect, that was enough for them.
Then you get to the second question, which is more the federal court's question, a little more advanced, which is mootness. Even if a plaintiff files a case, has standing to file that case, time goes on, litigation takes a while, maybe at some point, their injury is addressed. Then there's no need to continue the case anymore because there isn't anything to fight over that could actually be resolved by the case continuing. That's the concept of mootness, that, at some point, a case, even if it used to be justiciable, can at some point stop being justiciable. EPA and the other respondents tried to make that argument, that the case was moot.
Because EPA had asked the DC Circuit to stop the Clean Power Plan from going into effect and saying quite plainly that the agency was going to start from scratch, not implement the Clean Power Plan and decide on a new regulation under Section 111(d). Chief Justice Roberts basically didn't buy that argument. He concluded that, basically, because the government was on the merits defending EPA's right to generally do generation shifting under Section 111(d), it was possible that they would do the same thing again, and that was enough reason to address the issue now rather than waiting for a new regulation. My own takeaway on that analysis is, to me, there's three things missing from the majority's decision on the standing issue.
The first is because of the procedures agencies have to follow in creating new regulations, anyone who disagreed, these states, coal companies, whoever, with a future EPA regulation from the Biden administration under Section 111(d) would've had the opportunity to comment on that regulation while it was in proposed form. Then when it was in final form, before it could ever take effect, they have the right to sue over it. The difference between that situation and this situation is I think we would all actually know what we were arguing about. We would know what the proposal was, that the Biden administration was actually making. We would know the reasons that they were undertaking it.
We'd be able to argue on that back and forth instead of having this speculative argument about the specter of potentially doing generation shifting again. Second, not that I need to tell you or your listeners, I'm sure they know very well, but five years is a lifetime in climate policy and in the markets with respect to climate. As some of the briefs argued in the respondents' side, a lot of the trends, especially in power generation that the Clean Power Plan was really meant to push along, to accelerate, those ended up happening anyway due to market forces and due to regulation from the states. I think it was conceivable, and in fact, pretty likely that EPA was not thinking of doing the same thing all over again.
They probably would take some time to think about how they could build on everything that happened in the last five years, and then continue to push the sector in the right direction by thinking of something new to build on top of the progress that markets and the state regulation had already achieved even without the Clean Power Plan. Third, it's not really technically a standing issue, but Justice Kagan's dissent makes a really good point at the beginning, which is basically saying even if the majority is right, that they're standing, and also, that the case continues to be justiciable because it's not moot, what's the value in deciding this case now?
I think the thing to remember is unlike in a district court or something like that where somebody sues and then the court has to hear it, the Supreme Court's docket is almost entirely discretionary. Somebody comes to them and asks for an appeal to this case from the DC Circuit, they could have just said no and waited for another regulation from the Biden administration. They weren't obligated to take this case, even if there was standing. You do start to wonder, "Why now?"
Chad: Let's talk about the newish doctrine that underpins this decision. It's called the major questions doctrine. Can you tell us a little bit about its history and how it was applied, some say, creatively in this case?
Max: Sure. The major questions doctrine is a method of statutory interpretation that focuses on determining the validity of a regulation that asserts broad authority in some unprecedented way where the statute that authorizes that regulation doesn't clearly and specifically authorize that regulation. Major questions unlike another related theory called non-delegation doctrine, and we can get into that history lesson at some point. Major questions isn't from the constitution, it's not from the federalist papers or anything like that. It first came up in 2000 in a case called FDA v. Brown & Williamson.
In that case, the FDA during the Clinton administration had gone through this long process to attempt to issue a regulation asserting jurisdiction over tobacco products based on the argument that nicotine was a drug under the Food, Drug, and Cosmetic Act, but the FDA had never regulated tobacco before or tried to regulate tobacco before. The agency said that that was outside the scope of the statute. Justice O'Connor wrote the majority opinion in Brown & Williamson, and the majority rejected the EPA's regulation for more or less three reasons. First, FDA had never claimed to have authority to regulate tobacco in over 80 years or about that long, at that point, FDA had been in existence.
Two, FDA's proposed regulation had significant, what was called, breadth and that it had economic and political significance. Essentially, if you assert newfound authority over the entire tobacco industry that is of a certain meaningful economic and political significance that stuck out to the court. Third, the legal authority from Congress that FDA was relying on would've been an implicit delegation of the authority they were seeking because the statute didn't specifically authorize the regulation of something as significant as the tobacco industry. It said drugs, but it didn't say tobacco.
I think when we look at the tobacco industry, there are plenty of critiques of it, both then and now, and there are a lot of varied opinions about the Brown & Williamson decision, but when you get to it, I can at least understand what O'Connor is saying, which is basically that the court is going to be skeptical when an agency declares it has authority to regulate a major sector of the economy that it has never tried to regulate before based on implied authority that's broad or ambiguous in its language. The application of major questions based on O'Connor's decision in Brown & Williamson, came up really only a handful of times in the next 20 years.
Once in the climate change context with the EPA in a case called Utility Air Regulatory Group v. EPA, which is UARG for short, and that was in 2014. Then the major questions doctrine has really come back in a strong way, especially recently. After Justice Barrett was confirmed, major questions doctrine has already been used three times in the last year and a half as the basis for rejecting major regulatory programs, including the CDCs eviction moratorium, OSHA's vaccine mandate, and now the EPA's authority under Section 111(d). Coming now to the decision in West Virginia, Chief Justice Roberts' majority opinion says that all the court is doing is applying the same logic that justice O'Connor used in Brown & Williamson.
Several attorneys, academics and commentators have seen a real transformation of the major questions doctrine in this decision in West Virginia, and I tend to agree with that. I think as I see it, the application of the major questions doctrine now requires only that the regulation has to be a novel application of the agency's authority with vast economic and political significance and no clear statement from Congress authorizing it. I think the removal of the distinction that the sector at issue has to be newly regulated is a pretty significant distinction that the court doesn't really address. If you compare that to the majority opinions discussion of UARG, I think it's pretty telling.
Because in UARG, the majority opinion was written by Justice Scalia, not exactly known to be a liberal lion. In that case, the court still partially upheld an EPA regulation requiring that certain sources of emissions adopt more aggressive emissions-reducing methods. Justice Scalia looked at Brown & Williamson, and on the one hand, he looked at what were called in the opinion anyway sources, which is basically sources that already were and already could be regulated under the EPAs authority under the Clean Air Act. He contrasted that with the sources that would be newly swept under EPAs authority for the first time based on the way the regulation had been written.
On the one hand, he said the new sources were covered by the major questions doctrine and they shouldn't be incorporated in, but the so-called anyway sources, there's no surprise about the fact that they're regulated, so therefore major questions shouldn't apply. Chief Justice Roberts' majority opinion in West Virginia doesn't really address this distinction and instead just says that UARG is related to the rejection of EPA's unheralded regulatory power over a significant portion of the American economy. I think this distinction is pretty critical and if it had been applied, would've made a significant difference in the case.
In the Section 111(d) context, we're talking about power plants, coal burning or otherwise that are already heavily regulated by the EPA including heavily regulated already under Section 111(d). If you actually took Justice Scalia's logic and UR to its full destination, those are the same types of anyway sources, but the majority doesn't really address that issue.
Chad: In dissent Justice, Kagan made some pretty strong claims. I'm going to quote her one passage here and, "Let's say the obvious, the stakes here are high. Yet the court today prevents a congressionally authorized agency action to curb power plants' carbon dioxide emissions. The court appoints itself, instead of Congress or the expert agency, the decisionmaker on climate policy. I cannot think of many things more frightening." I just want to really hone into this point Congress has every right to pass another law that would clarify its intent if it's so chose.
If it thought the executive branch, which is also duly elected by the people, president is of course, was misapplying the original statute. Why does the court think it needs to step in in this case and not let the current Congress clarify if it disagrees with the current administration’s implementation of the statute?
Max: I think this is one of the enormous tensions in the fact that this decision came up to the court at all and came out in the way that it did. To add a really specific example on top of that representing 192 members in our amicus brief, one of the things that we emphasized was that's exactly the type of thing you were articulating had already happened under the Trump administration. In addition to the ACE rule, the Trump administration had also put out a rule related to methane emissions. As a part of that rule specifically said that EPA did not have authority to do generation shifting or other similar programs under Section 111(d) that was a legal conclusion that was part of that rule.
Congress, as soon as the Biden administration came in, rescinded that immediately. Part of the reason they rescinded it was to make absolutely clear what the scope of the authority was that this push and pull of politics and ensuring that one branch is watching what the other branch is doing function exactly as you'd expect. Unfortunately, the court didn't focus on that issue and inserted itself I think in a way that was pretty unnecessary.
Chad: Even more troublingly I think going forward, Justice Gorsuch joined by Justice Alito concurred with the decision under the non-delegation doctrine. Could you tell us a little bit about this theory or doctrine and how it's potentially even more aggressive in shutting down these sorts of regulations than the major questions doctrine, which was the doctrine underpinning this particular ruling?
Max: Sure. So starting out non-delegation doctrine basically says that as a matter of constitutional separations of powers, Congress has a limited ability to only delegate certain things. Basically the idea being that Congress passes a law, non-delegation doctrine suggests that there are only limited ways in which Congress as a part of that law can tell another branch of government to do its bidding in exactly the structure that we currently have, the modern administrative state. Congress passes a law, says, "You need to make sure the air is clean," and directs EPA to be the experts who, over time, develop experience and knowledge about the best way to implement that over time and to continue to deal with that challenge.
Non-delegation doctrine basically says as a structural matter under the constitution, that a lot of those delegations are not permissible. This takes us back to the history lesson we skipped earlier about major questions. We can add in a little bit of a brief legal history here to go with your civil procedure lesson. In the 19th century, there were a few cases, not many, that grappled with this issue of non-delegation and separation of powers between the three branches of government and whether and to what degree Congress had the ability to pass laws that delegated authority. It didn't really go anywhere.
It was maybe three cases here or there, a lightly debated issue, but not really a governing doctrine. The issue got picked up again during the depression and especially during FDR's presidency when the Supreme Court had a block of four conservative justices who were very colorfully known as the four horsemen who vigorously opposed the new deal agenda on non-delegation grounds. It came up as a concept in striking down or attempting to strike down a number of components of FDR's new deal agenda. Ultimately, the doctrine didn't really end up continuing and got shelved after that because of the history related to FDR's threatened expansion of the court in response to some of those decisions.
Then ultimately, when one of the four horsemen, Justice Van Devanter, retired and was replaced by Hugo Black, there weren't enough votes on the court to really continue to threaten with the doctrine. It, again, died on the vine. It's now coming back again through a number of things, including Justice Thomas' concurring decisions on his own from a number of years ago and now Justice Gorsuch. Fundamentally, it's a pretty significant structural threat to not just climate regulation or to the EPA, but basically to the structure of the administrative state.
Because if you're saying as a constitutional matter that Congress is not allowed to delegate significant parts of its authority to agencies that are in the executive branch, you basically can't have a modern administrative state.
Chad: Then let's talk about the implications of this ruling and this concurrence if it is expanded on other existing and potential executive branch climate regulations. The first that is perhaps the most near-term is the SEC mandatory climate disclosures where publicly traded companies must disclose scopes one, two, and even three for some companies emissions. This ruling is still in draft form, but that's the expectation that'll come out. aAlready though in July, 24 state attorneys general submitted supplemental comments to the SEC arguing that West Virginia versus EPA confirms that the SEC should not finalize its climate reporting proposal. What are your thoughts on how this proposal will fare out in this court?
Max: I think the odds are pretty high that this will be challenged if it goes into effect and is finalized. I think that there will be a strong probability that this interpretation of major questions that in the West Virginia context made clear the EPA doesn't have a broad free-ranging authority to address climate change through statutory provisions that don't clearly authorize it. I think that's a shot across the bow of the SEC, the securities laws are going to be analyzed very similarly. The securities laws obviously don't mention climate change or the importance of environmental disclosures to investors.
The SEC is interpreting the statute and understanding the context in which investors operate, but fundamentally, that's going to involve some interpretation of a broad and ambiguous statute. I think that's exactly what the court has made clear that it's going to look at very skeptically.
Chad: I hope the SEC regulators are incorporating this potentiality into their final rulemaking. The next issue I want to talk about are the EPA regulations on greenhouse gas emissions from cars and trucks. Last February, 2 biofuel coalitions, a group of oil and gas producers and a refinery industry group joined 15 Republican state attorneys general in suing the Biden administration over a December rulemaking that increases vehicle fuel economy standards to cut greenhouse gas emissions. Similar to the West Virginia versus EPA case, the lawsuits argue that the EPA is exceeding its authority by using the rule to shift the transportation sector away from liquid fuel vehicles to electric ones as opposed to simply regulating greenhouse gases from liquid fuel vehicles. What are your thoughts on implications of this ruling on this regulation?
Max: I think my initial response is a caveat that I've learned to say never say never with this iteration of the Supreme court. They find a way to surprise me. Analytically, this one seems distinct to me because fundamentally even if fuel standards are going higher, fundamentally, that's just sort of an extension of the same logic of Massachusetts v. EPA. It's not declaring that there has to be a shift of sources. It's encouraging along the shift of sources by continuing to develop in the direction of cars being more efficient. Then on the other side, investing in making electric vehicles more affordable.
Chad: Then finally, you and others, your firm filed another amicus brief on behalf of businesses supporting the EPA's authority to protect wetlands under the Clean Water Act in Sackett v. EPA an upcoming case that will be heard by the Supreme Court this fall. What awaits the EPA's authority under the Clean Water Act as a result of this decision in your view?
Max: This case is a fight about the meaning and reach of the phrase waters of the United States in the Clean Water Act. The question is basically a question about a prior decision, a split decision of the court in 2006, in a case called Rapanos about whether or not wetlands that don't have a continuous surface connection with waters of the United States but still have a "significant nexus," a connection to a navigable water of the United States are covered and subject to regulation and enforcement by the EPA. Our brief was from the perspective of a number of small businesses and organizations that really have a lot of economic stake in clean water and especially of the implications of wetlands and the protection of wetlands for clean water for their businesses and for society.
Wetlands are a pretty critical part of the water ecosystem to prevent flooding, to ensure water quality, to protect wildlife. They have a huge influence on a number of industries that depend on them, including family farming, including beer, which we all love, outdoor recreation, the seafood industry and more. All these industries are very reliant on a clear, predictable and also comprehensive and effective water regulation system through the Clean Water Act. In light of West Virginia, I think there's some question about whether textualism or major questions will govern the interpretation of waters of the United States in that case. I think given the court's recent trajectory, there's some reason to be concerned that's only the first of the court's deregulatory decisions.
Chad: Interestingly, in West Virginia versus EPA, the Supreme Court did not overturn Massachusetts versus EPA from 2007, some expected it may. Tell us about this decision and what authorities, the EPA, likely unambiguously retains, even despite West Virginia versus EPA to address our climate crisis?
Max: I think there's a couple things. We talked about fuel standards, I think, again, never say never. My own view is that fuel standards are not really implicated by the decision or by the logic of the way they're using major questions doctrine. There are also all the same inside the fence line regulations. There was this distinction in the Clean Power Plan between generation shifting being an outside the fence line system because it's conceiving of effects that are outside of the structure of a power plant that affect the power plant. You could have carbon capture, for example, or other authorities that only particularly implicate how an existing power plant operates without getting into the issue of whether or not you could create a version of cap-and-trade through the system.
There are still some authorities, and EPA still has a really important role to play. I think the separate question is whether or not Massachusetts v. EPA is safe. I think given Justice Gorsuch's concurring opinion discussing non-delegation doctrine, and in other context, the court's recent willingness to revisit even pretty well established precedence. In other cases, the Dobbs decision being the prominent example. I'm a lot less confident about the survivability of Massachusetts v. EPA than I was a couple months ago.
Chad: That's not the note I want to end on. We do want to do our hot seat. Max, we asked for your immediate quick thoughts to the following statements. The hardest decision I've ever made is?
Max: Deciding to leave my prior job in 2020 in the middle of the pandemic. I decided I wanted to get involved in the 2020 general election having to navigate the pandemic and doing that. Also, not really being sure what was going to be waiting for me on the other side of the election as far as my career. Thankfully, I landed at Pollock Cohen, and here I am chatting with you.
Chad: That's great. One thing I changed my mind on is?
Max: Thinking too much that you have to plan your career. You have to plan your life rigidly too far in advance. A little bit of planning is good in moderation, but there always has to be space to be open to new and unexpected opportunities.
Chad: The person I've learned the most from is?
Max: My wife. My wife came to the United States with her family from Ukraine when she was seven years old. She's the most interesting, the most thoughtful and the hardest working person I know. We've been together for 12 and a half years now, and she is still interesting and challenging and thoughtful, and I don't see that changing anytime soon.
Chad: If I had to do it all over again, I would?
Max: I can think of some tech stocks, I'd probably travel back in a time machine and tell myself to invest in. Otherwise, I don't think I would change the thing. I think I'm where I want to be. I love living in New York. I love helping clients, and I love being a lawyer, so I think I'm where I want to be.
Chad: I connect to nature by?
Max: Two parts. If I'm going to be in New York city, I live uptown in Washington Heights, so the answer is in Woodhill Park, which I think is probably the most underrated park in the city. The last uninterrupted forest land on the island of Manhattan. You can really go in and completely forget you're in New York city, it's incredible. Outside of the city, I've really fallen in love with Montana since I worked there during the election, and I'm going to have to keep going back and continuing to experience it. I've been hiking and skiing near Helena, but there's a lot more to do.
Chad: When I need to recharge?
Max: I cook something incredibly elaborate.
Chad: Like what?
Max: I'm a big fan of sous vide. Probably the craziest sous vide thing I've ever done was I made a 48-hour porchetta, which then was deep-fried in pork fat when it came out of the sous-vide.
Chad: [chuckles] Wow. The most insightful book or article I've read recently is?
Max: I'm a lawyer, so I'll fight the question a little bit. If you'll indulge me, I have two. As I mentioned, my wife is Ukrainian-American, and since the war started, we've been reconnecting with a lot of contemporary Ukrainian art and writing. I've really enjoyed this poetry collection called What We Live For, What We Die For by Serhiy Zhadan, which you can buy in English. His work really captures this grit, moral determination, and gallous humor that I know and love in Ukrainian culture and that I think the world has gotten to see very close up this year.
On the nonfiction side, on topic for us, I recently read and really enjoyed Delegation at the Founding, which is a law review article by Julian Mortenson and Nicholas Bagley that was published in the Columbia Law Review, which is basically a sweeping review of historical sources from the founding and the early federal Congresses that pretty strongly refutes the originalist logic of the non-delegation doctrine.
Chad: Very timely article. The Supreme Court Justice throughout history, I most admire is?
Max: Louis Brandeis. He was the first Jewish Supreme Court Justice at a time when that was really no small feat, if you go back and read some of the history about his confirmation process, it's pretty crazy. More importantly, he was a towering intellect in a variety of subjects and was hugely influential on antitrust, on banking, on workers' rights, on civil liberties, on the institutional credibility of the court, and was always focused on working in all of those areas to service the public good.
Chad: Aside from Climate Positive, My favorite podcast is?
Max: Very, very close call between Rational Security and Strict Scrutiny.
Chad: Two great legal podcasts. The best restaurant in New York City that most people haven't heard of is?
Max: I absolutely love an Italian food popup called Zaza Lazagna in Cobble Hill in Brooklyn. It's run by a very good friend of mine who used to run a restaurant in the same neighborhood called Brucie, which used to be the best restaurant in New York City that most people haven't heard of.
Chad: If I weren't an attorney with Pollock Cohen, I would be?
Max: I have no idea how successful I would be, but I would be a chef.
Chad: [chuckles] To me, climate positive means?
Max: Doing what you can with what you have, encouraging others to do the same, and keep moving in the right direction.
Chad: Well said, Max, this has been a really insightful conversation. Thank you for putting this case into context and helping us understand its implications. We appreciate your time and look forward to talking again soon.
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I'm Chad Reed.
And this is Climate Positive.