July 08, 2022 | E&E News | 1 minute read

The Environmental Protection Agency may still have the ability to write meaningful climate regulation, despite the limitations put on the agency’s reach by the Supreme Court’s recent ruling in West Virginia v. EPA.

Jeffrey R. Holmstead, a partner in Bracewell’s Washington, DC office who served as EPA air chief under President George W. Bush, told E&E News that the court didn’t foreclose the possibility that EPA could use some form of averaging among fossil fuel plants to deliver greater reductions at lower cost in a subsequent rule.

“The court went out of its way to say it wasn’t deciding the issue,” said Holmstead.

He noted that EPA could find guidance in a section of the majority that discusses the cap-and-trade program for mercury. The mercury rule sets standards that can be met by individual power plants through trading.

“So you could certainly imagine a trading regime that doesn’t run afoul of the Supreme Court’s decision,” Holmstead said.