On June 30th, the United States Supreme Court released a ruling regarding the case of West Virginia v. Environmental Protection Agency (EPA). This court case was a combination of multiple dockets that were focused on EPA’s Clean Power Plan (CPP) proposals from 2015 that were never enacted (West Virginia v. EPA 2022, 1). The primary issue stemmed from EPA’s use of authority under the Clean Air Act (CAA) in regulating pollutants from existing power sources under section 111(d) (U.S. Code 2013). Section 111, also known as 42 U. S. C. §7411, generally applies standards of performance for new stationary sources, but part (d) focuses on the standards of performance for existing sources where there is remaining useful life of the source (U.S. Code 2013).
The EPA was accused of going outside of their congressionally delegated authority with their novel approach to power plant emissions by the state of West Virginia. EPA’s approach implemented the use of a generation shifting system at the grid level instead of technology-based solutions specific to an individual power plant (West Virginia v. EPA 2022, 3). The federal Supreme Court was tasked with determining whether the “best system of emission reduction (BSER) identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act” and their 6-3 ruling was that the EPA was not within their authority (West Virginia v. EPA 2022, 6).
The U.S. Supreme Court ruling is a federal-level decision directed at a federal agency, the EPA. Rulemaking from the EPA leads to regulations that each state must then develop plans to achieve the standards (U.S. Code 2013). This means that impacts from this ruling cascade from the federal level down to each state and to the businesses that are regulated in those states. Energy power plant operators were the primary focus for the CPP regulations, so they had a large interest in this case, especially coal-fired power plants since they were the primary target of the CPP’s proposed generation shifting system. While the case, and its decision, were most important to federal and state level agencies and power plants, the precedents set in the ruling of this case have farther reaching implications to any business facing regulatory compliance and to all citizens.
In the majority opinion of the Supreme Court, two major arguments were made to reduce EPA’s ability to regulate under section 111(d) of the CAA. These two main arguments stated that the EPA was not granted authority to regulate as broadly as they had and that generation shifting cannot be a system of emissions reduction. To develop these arguments, the majority judges created a new approach called the “major questions doctrine” to challenge the agency’s regulating authority (West Virginia v. EPA 2022, 3). They also focused on the word “system” when arguing against the EPA’s proposed generation shifting approach (West Virginia v. EPA 2022, 6). These arguments directly counter the Court of Appeals rulings prior to the case being taken on by the Supreme Court (West Virginia v. EPA 2022, 19). The dissenting opinion, written by Justice Kagan and joined by Justice Breyer and Justice Sotomayor, provides a sobering look at the weaknesses and sinister nature of the majority’s arguments. Justice Kagan also notes that this discretionary case was unnecessary since the CPP implementation had been halted with no plans to restart its implementation since the emissions targets had already been met and any new EPA rules that do come out will undergo pre-enforcement judicial review at that time (West Virginia v. EPA 2022, 60).
Major Questions Doctrine
A primary argument put forth by the Supreme Court majority was a concept they newly coined call “the major questions doctrine” that has never been used before (West Virginia v. EPA 2022, 71). They put forth that a “clear statement is necessary for a court to conclude that Congress intended to delegate authority of this breadth to regulate a fundamental sector of the economy” (West Virginia v. EPA 2022, 3). However, in Justice Kagan’s dissent, she outlines how Congress gives agencies powerful tools to confront new and emerging issues through the granting of broad-ranging powers that allow the administrative agencies to develop rule by rule details from Congress’s policy outlines (West Virginia v. EPA 2022, 87). In the CAA specifically, Congress actually declined to include more restrictions in Section 111 than in other sections, indicating that Congress knew how to impose those additional requirements if it wanted to (West Virginia v. EPA 2022, 66).
The majority also argued that the EPA “claimed to discover in a long-extant statute an unheralded power representing a transformative expansion in its regulatory authority” (West Virginia v. EPA 2022, 26). However, that incorrectly frames this backstop provision that helps protect against pollutants not included in the National Ambient Air Quality Standards (NAAQS) and Hazardous Air Pollutant (HAP) sections of the CAA (West Virginia v. EPA 2022, 62). Congress explicitly added this broad provision to address additional pollutants that they may not know about at the time. This is how Congress provides flexible tools for expert agencies to respond to new and large problems that may arise (West Virginia v. EPA 2022, 61).
To further bolster their claim that Congress did not intend to grant these abilities to the EPA, the majority stated that since Congress had rejected cap-and-trade schemes many times previously after knowing the dangers of greenhouse gas (GHG) emissions that Congress did not intend to grant the EPA the authority to implement systems like generation shifting (West Virginia v. EPA 2022, 33). The dissent again provides excellent counterpoints supported by several previous cases, showing how failed legislation is a “dangerous basis on which to rest an interpretation of an existing law a different or earlier congress adopted” (West Virginia v. EPA 2022, 83).
With the addition of the new “major questions doctrine”, it brings up another question regarding the motivations of the majority opinion in this case. Shifting away from textual arguments, this new doctrine appears to focus on “prevent[ing] agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion” (West Virginia v. EPA 2022, 85). A pattern begins to emerge from the collective actions of Trump’s political and judicial appointments. The Trump-era EPA repealed its own Obama-era CPP due to it being “in excess of its statutory authority under Section 111(d)”, even though EPA itself was the agency that put forth the CPP (West Virginia v. EPA 2022, 17). The Trump-era EPA also directly setup the development of the “major questions doctrine” by stating to the Supreme Court that the courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance” (West Virginia v. EPA 2022, 17). Again, this goes against the methods Congress uses to grant expert agencies authority to tackle large complex issues. This pattern of anti-administrative-state statements seems to indicate a pre-meditated approach to limiting environmental agency power.
The Supreme Court majority also raised concerns with the generation shifting sections of the CPP. They stated that “generation shifting cannot be a system of emission reduction under Section 111” (West Virginia v. EPA 2022, 3). Generation shifting is a method EPA developed that was focused on grid-level shifting of electricity production from higher-emitters to lower-emitters. Using a building blocks approach, generation would be shifted away from coal first, and then away from coal and gas plants to renewables (West Virginia v. EPA 2022, 2). The EPA had found this approach to be the “best system of emission reduction” (BSER) that achieved the environmental goals without leading to undue cost increases (West Virginia v. EPA 2022, 2).
Focusing on plant-level emissions through efficiency alone would not have made a large enough impact so the EPA focused on the overall power system to lower carbon intensity of power generation as a whole (West Virginia v. EPA 2022, 29). The majority opinion stated that technology-based solution approaches, which EPA stated is intended by Congress, is specific to individual sources (West Virginia v. EPA 2022, 28). EPA was trying to manage emissions at the grid-level instead of at the source level, which the Court of Appeals found as acceptable, but the Supreme Court took issue with (West Virginia v. EPA 2022, 19). The Supreme Court majority stated that EPA had never created a cap on emissions by looking at a “system” that would reduce pollution (West Virginia v. EPA 2022, 27).
The majority then focused on the definition and meaning of the word “system”. They stated that it is a vague term and does not indicate clear authorization (West Virginia v. EPA 2022, 6). However, as Justice Kagan points out in the dissent, the courts “do not assess the meaning of a word in isolation” and use the context of the overall statutory design to understand the meaning (West Virginia v. EPA 2022, 70). The wording of “system” in the CPP aligns with the CAA and would include cap-and-trade mechanisms like were found in the CPP (West Virginia v. EPA 2022, 65). The majority’s efforts to counter the textual approach taken by the court historically and focus only on a single word in isolation provides weak support for their position.
Another issue brought up was that the BSER chosen for existing coal plants did not match the BSER for new sources (West Virginia v. EPA 2022, 13). There were no rebuttals to this issue in the dissent, however, the point was directly contradictory to the early majority opinion statement that “standard(s) may be different for new and existing plants” (West Virginia v. EPA 2022, 8). Additionally, there was also no actual dispute that generation shifting was the best system to reduce power plants’ carbon dioxide emissions with costs having been included in the considerations (West Virginia v. EPA 2022, 61).
Effects and Future Impacts
The results of this case will likely have a wide array of effects and impacts. The decision by the Supreme Court majority, even with weak arguments, now limits the authority of the EPA to regulate GHG emissions in the most cost-effective way. It also sets up actions to further erode environmental regulations.
In the short term, this will delay the EPA’s efforts on implementing pollutant reducing efforts. This will allow polluting businesses to be able to continue with business-as-usual approaches which will lead to more emissions that are detrimental to the environment and citizens. While there are other potential avenues the EPA can utilize to regulate GHGs within the CAA in the long term, like NAAQS or updated individual point source emission rules, blocking EPA’s ability to utilize the most cost-effective method for reducing emissions is likely to only increase costs when implementing less efficient options in the future. It also delays important, and inevitable, actions that need to be taken to reduce climate change impacts from human emissions.
Additionally, the arguments and precedence set with this case are likely to have much further reaching implications. The new “major questions doctrine”, and the efforts that led up to it, are a direct attempt to undermine the authority expert agencies have been granted by Congress. It is likely that this precedence will now be used to challenge a plethora of other environmental regulations. This anti-administrative-state stance attempts to place the economy over the environment and will likely only lead to higher costs and worse environmental conditions in the long run. In a string of controversial Supreme Court rulings, the final ruling in the case of West Virginia v. Environmental Protection Agency will lead to even more costly delays in efforts to face the largest threat humans have ever faced; climate change.
Author: Logan Callen
U.S. Code. 2013. “§7411. Standards of Performance for New Stationary Sources.” GovInfo.gov. Accessed June 30, 2022. https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html/USCODE-2013-title42-chap85-subchapI-partA-sec7411.htm.
West Virginia v. EPA. 2022. 596 U.S. ___ (2022). Accessed June 30, 2022. https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf.