Supreme Court: EPA Can’t Cap Greenhouse Gas Emissions From Power Plants
The Supreme Court just decided “the most closely watched environmental case in decades,” West Virginia v. U.S. Environmental Protection Agency. In the 6-3, opinion, the Court holds that the EPA cannot use Clean Air Act §111(d) to set power-sector-wide greenhouse gas emissions standards for state power plants. The Court also explains that the Major Questions Doctrine is crucial to this analysis and reflects both “separation of powers principles and a practical understanding of legislative intent.”
A Justice Gorsuch concurrence, joined by Justice Alito, lays out their view of history and application of clear statements doctrines and the major questions doctrine specifically. Justice Kagan wrote a dissenting opinion, joined by Justice Breyer and Justice Sotomayor.
The opinion can be found here: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
As a reminder, here is a summary of how the case got to the court from a blog post and webinar I did last December, in anticipation of the Supreme Court argument:
Under the Clean Air Act, the Environmental Protection Agency regulates greenhouse gas emissions from various sources including new cars and new industrial sources. But a large proportion of the country’s greenhouse gas emissions come from existing sources, such as the nation’s coal and natural gas power plants, which provide over half of American electricity.
In 2015, the Obama administration issued a regulation for existing fossil fuel power plants under Clean Air Act §111(d), which allows the EPA to “establish a procedure” for each state to adopt “standards of performance” for existing sources of air pollutants. The administration called this rule the “Clean Power Plan.” It was controversial, in part, because it went beyond asking states to make their existing power plants run more efficiently. Instead, it went “beyond the fenceline” of the power plant to encourage non-fossil sources of electricity such as wind and solar power and shrink the fossil-fuel power sector.
The Clean Power Plan never went into effect because the Supreme Court stayed its implementation on February 9, 2016. The D.C. Circuit heard more than 7 hours of argument on the validity of the Clean Power Plan but never ruled on it because the Trump administration repealed it and replaced it with its own rule, which it called the “Affordable Clean Energy Rule,” and was limited to promoting efficiency measures at existing fossil fuel plants. The D.C. Circuit then heard 9 more hours of argument on this new rule, before striking it down on January 19, 2021. The court held that EPA’s authority was not so limited.
The Supreme Court granted certiorari to decide whether Clean Air Act §111(d) gives “the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.” The case is an important sequel in the Court’s lines of cases on how much deference executive agencies should receive to decide major questions of policy and whether Congress might authorize dramatic agency action from relatively obscure provisions—hiding an elephant in a mousehole.
The opinion can be found here: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
The Supreme Court emphasized that “the only interpretive question before” it was “narrow”: “whether the ‘best system of emission reduction’ 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.” Some had thought it might explicitly limit the Chevron doctrine or return to the non-delegation doctrine. This is a narrower ruling, but may rule out some of the more aggressive steps the Biden administration might have considered to reduce sector-wide greenhouse gas emissions in areas such as utilities, refineries, and oil and gas development.