Supreme Court Issues Ruling in
West Virginia v. EPA Case

On June 30, 2022, the U.S. Supreme Court issued a 6-3 decision in West Virginia v. EPA ruling that the Clean Air Act (CAA) § 111(d) did not authorize the Environmental Protection Agency (EPA) to implement a generation shifting approach that directed power plants to use clean energy sources over time. The question before the Supreme Court in the West Virginia v. EPA was whether the EPA had authority under the CAA to issue rules that reshape the Nation’s power sector. In the absence of major congressional legislation regarding greenhouse gas emissions, many stakeholders are interested in other policy options to shift the power sector from coal power generation toward cleaner forms of electricity production. This case placed restrictions on the EPA’s ability to control greenhouse gas emissions under the CAA.

In August 2015, the Obama administration announced the Clean Power Plan. The goal of the plan was to reduce carbon emissions from power plants in order to address concerns about climate change by directing power plants towards using cleaner sources of energy. The EPA was set to implement the Clean Power Plan under the CAA § 111(d), which authorizes the EPA to determine the “best system of emissions reductions” and allows states and Tribes to decide how they will meet reduction goals; however, the U.S. Supreme Court prohibited the implementation of the plan in 2016. Due to market changes, the power industry was already shifting towards cleaner energy and met the EPA’s emissions reduction goal in 2019. The Trump administration tried to enact the Affordable Clean Energy (ACE) Rule, which reduced limitations on gas plant emissions and standards for coal plants. The D.C. Circuit Court invalidated the ACE Rule in 2021 and sent it back to the EPA to create a new rule. The Biden administration has discussed the development of a new rule for the CAA. In the meantime, the West Virginia v. EPA case challenging the Obama’s Administration’s adoption of the Clean Power Plan was appealed to the Supreme Court – despite the fact that the plan had never gone into effect.

Chief Justice Roberts authored the majority opinion and began by addressing the question of mootness since the case was about the Clean Power Plan, which the Biden administration stated it would not enforce. The Court found that since it was not absolutely clear that the Clean Power Plan would never be enforced, the question was not moot. Therefore, the Court decided the case under the Major Question Doctrine, which provides that where an agency is attempting to assert authority over an area that has great economic or political significance then clear congressional authorization to act is required. The Major Questions Doctrine was brought up in this case because the Clean Power Plan was an attempt to regulate the entire energy sector by directing power plants to begin shifting from coal and fossil fuels toward cleaner energy sources such as solar and wind. The Court ruled that § 111(d) of the CAA authorizes the EPA to establish emission guidelines for existing pollution sources, but it does not permit them to regulate the energy sector as broadly as contemplated in the Clean Power Plan. The Court directed the EPA to create a new rule within the Court’s narrower interpretation of the language “best system of emissions reduction” used in § 111(d) of the CAA.

Justices Gorsuch wrote a concurring opinion, that was joined by Justice Alito, advocating for stricter limitations on Congress’s power to delegate regulatory authority to federal agencies. The concurrence stressed the importance of the Major Questions Doctrine for safeguarding representative democracy and not shifting power into the hands of non-elected officials. Justice Kagan submitted the dissenting opinion that was joined by Justice Breyer and Justice Sotomayor. The dissent emphasized the need for the EPA to be able to address climate change. Kagan then expressed concerns about the Major Question Doctrine and highlighted Congress’s need to make broader delegations of authority so that agencies can address ongoing and changing problems such as climate change.

The EPA is still able to issue regulations for emissions reductions that require changes that can be made on-site to existing power plants. Additionally, Congress could pass new legislation giving the EPA authority to implement a plan similar to the Clean Power Plan that takes a broader approach to emissions reduction. The ruling issued by the court was the first formal use of the Major Question Doctrine and will likely have significant implications for the future of federal regulatory law and agencies’ ability to address climate change.