U.S. Supreme Court to consider limitation of EPA in landmark case: West Virginia vs. EPA
Wed Apr 6th, On Rulemaking and Legislative Practice, by Micah Porter
At a time when carbon emissions stand at the forefront of public concern, legislators and advocacy groups throughout the United States are doing all they can to limit the fossil fuel and coal industries to prevent further impacts. For the past 50 years, environmental policymakers have looked to the guidance of the Environmental Protection Agency (EPA) to develop and enforce environmental regulations. However, recent debates over the provisions enabling the EPA to function in its regulatory capacity are leading many to ask the question: does EPA have the authority to govern emission standards to combat global warming? This question may soon be answered, as the United States Supreme Court has granted certiorari to permit coal companies and Republican-led lobbyist groups to plead for the limitation of EPA’s power to regulate carbon emissions under the Clean Air Act. This case, West Virginia vs. EPA, has the capacity to fundamentally alter the authority of the EPA to regulate emissions in the future. All eyes will be on the Supreme Court to determine a solution that is both deliberate and attentive.
Foundations of case rest upon contrasting views of the Clean Air Act
The origins of the case can be traced back to stipulations over the interpretations of section 111(d) of the Clean Air Act, which Obama invoked in his Clean Power Plan back in 2015. The Clean Power Plan, which built upon the goals and ideals established during the Paris Agreement, entrusted power to the EPA to operate under a new set of emissions standards. The new plan included the goal of not only reducing the carbon intensity of electricity generation in power plants, but also took actions that regulated activities that occur “beyond the fence line” of a power plant, such as mandating a transition away from coal to another form of fossil fuel. The Clean Power Plan contained the ambitious target of reducing emissions from the power sector by 32 percent by the year 2030. In order to achieve this goal, the Obama Administration instructed each state to draft a plan to eliminate carbon emissions from power plants by phasing out coal and increasing generation of renewable energy. However, before even having the opportunity to be put into effect, the plan was met with immense backlash from industry groups and state officials who claimed that the EPA has neither the authority nor the right to regulate the power sector to the degree the plan had stated. Ultimately, the Supreme Court issued a stay, thus preventing the plan from going into effect until the lower courts had the opportunity to offer input. The plan would never be implemented, however, as the Trump era administration swiftly and strategically replaced the Clean Power Plan with their own proposal: the Affordable Clean Energy Rule (ACE).
In 2017, the Trump administration drastically reduced the duties entrusted to the EPA. The ACE rule prohibited the EPA from any beyond the fence line actions, claiming that the agency’s main goal should be to ensure efficiency within the power plants rather than concern themselves with matters relating to
potential negative externalities. This plan, too, was met with immediate legal barriers, and the D.C. Circuit would eventually strike down the ACE rule in January 2021, claiming that the rule was unreasonable and inconsistent, as the EPA is fully granted the authority to operate outside of the fence line. However, despite shooting down the prospects of Trump’s ACE rule, the D.C. Circuit did not reinstate the plan used by the EPA prior to the Clean Power Plan, thus leaving Biden and his administration to redraft a proposal that builds upon the goals of its predecessors. This new plan is yet to be announced, however, in the meantime, West Virginia, Alabama, Alaska and other coal dependent states and coal companies have urged the Supreme Court to review the D.C. Circuit’s decision. To the surprise of many, the Supreme Court agreed. One of the major challengers in the case, the North American Coal Corporation, has emphasized that the matters of climate change, and how to address it, are of utmost importance, however those debates will not be resolved anytime soon. What the North American Coal Corporation, and many other coal companies, hope to resolve through this case is whether EPA has the authority to decide those issues.
SCOTUS to inspect arguments of both sides in the coming months
The Supreme Court heard oral arguments on February 28, 2022 and is now considering the arguments made on both sides concerning whether or not the EPA has authority to address matters of energy regulations on an industry-wide scale, or if their authority is limited to matters within the fence line of the power plants. On the side of the EPA, defenders presented the argument that West Virginia and other petitioners have no case because there is no rule currently in place. The current EPA has no desire to resurrect and implement the rule that the D.C. Circuit struck down, so it is moot to review the D.C. Circuit’s ruling on EPA’s authority in that rule. On the other hand, petitioners are invoking the nondelegation doctrine, which holds that legislative bodies cannot delegate legislative powers to executive agencies – this doctrine emerges from the objective of separation of powers stipulated in Article 1 of the United States Constitution. In the framework of this case, petitioners argue that the interpretation of title 42 (7411D) is an inappropriate and unconstitutional ceding of legislative authority to the EPA that holds immense economic ramifications. Petitioners will also be attempting to invoke the “major questions doctrine,” which holds that courts should not defer to agency statutory interpretations that concern cast economic or political significance.
Potential outcomes of West Virginia vs. EPA ruling
While it is too early to predict the Supreme Court’s likely decision, political scientists and industry specialists are expecting one of two potential resolutions. The Supreme Court could issue a narrow ruling in which the EPA is still granted room to maneuver in implementing a new rule for power plant emissions; this would undoubtedly be a victory for the EPA. Alternatively, it is possible that the Supreme Court moves to block the EPA from looking beyond the fence line whatsoever, which would drastically impede Biden’s climate agenda. This alternative could have wide-reaching impacts on EPA’s authority in other areas including its power to regulate navigable waters of the United States under the Clean Water Act.
Whichever decision the Supreme Court arrives on will render this case a landmark proceeding with major implications to the ways in which power is distributed within the government.
Particularly, the current Court’s view of the “major questions doctrine” and the way in which the Court interprets it may fundamentally redistribute power from government agencies to Congress or to states – this would not only limit the EPA, but other government agencies as well. No doubt this decision will further the debate over the balance of power between the elected officials of the United States Congress and the agencies who hold direct democratic accountability to the president.