West Virginia v. EPA
West Virginia v. Environmental Protection Agency | |
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Court membership | |
| |
Case opinions | |
Majority | Roberts, joined by Thomas, Alito, Gorsuch, Kavanaugh, Barrett |
Concurrence | Gorsuch, joined by Alito |
Dissent | Kagan, joined by Breyer, Sotomayor |
Laws applied | |
Clean Air Act |
West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022), is a
The case centers on the
In a 6–3 ruling issued on June 30, 2022, the Court ruled that the regulation of existing power plants in Section 7411(d) fell under the major questions doctrine, and within that, Congress did not grant the EPA authority to regulate emissions from existing plants based on generation shifting mechanisms, which would have invalidated the Clean Power Plan. The EPA may still continue to regulate emissions at existing plants through emissions reduction technologies.
Background
Clean Air Act
As part of the amended Clean Air Act (CAA), under § 7411(d) (or Section 111 in the proposed bill), Congress granted the
Prior EPA litigation
One key piece of litigation related to the Clean Air Act was the 2007 Supreme Court case Massachusetts v. EPA, which in a 5–4 decision, had found that the EPA was mandated by Congress to regulate greenhouse gas emissions and can be sued for failing to enact rules to this end under the Clean Air Act.[2] Massachusetts v. EPA was considered one of the most significant cases in environmental litigation, as it allowed for a range of further lawsuits aimed to force emission-producing entities to limit their emissions.[3]
Another relevant piece of litigation was the 2015 Supreme Court case
Procedural history
Clean Power Plan
In June 2014, the United States
In August 2015, opponents of the CPP, which included 28 states and hundreds of companies, challenged the EPA's authority in its rulemaking of the CPP, filing suit in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) after the rules were published in the Federal Register. Their suit challenged the CPP primarily on three factors. The first related to an oversight during the reconciliation of the Clean Air Act amendment in 1990 which resulted in the House and Senate versions of § 7411(d) to never be reconciled, and both versions were codified into the signed law. The House version had stated that because other parts of the Clean Air Act had covered regulation of carbon dioxide, the EPA could not use § 7411(d) to cover carbon dioxide emissions from existing plants, while the Senate version allowed for § 7411(d) to overlap carbon dioxide emissions coverage.[9] The EPA inferred that they had judicial deference to interpret the law, following the 2015 Supreme Court decision in King v. Burwell, and used the Senate's language to develop the CPP, while opponents believed that the House version was the intended language consistent with other parts of the law.[9]
A second factor raised by opponents of the CPP was that the EPA's rule reached beyond their normal authority by giving states authority to regulate power plants across the board rather than at an individual plant level. Opponents believed that while the EPA or states could have plants take actions like implementing emissions controls as those were within bounds of the plant's control or "within the fenceline", the rules related to efficiency improvements and renewables were considered to be "outside the fenceline".[12] The third factor was related to Tenth Amendment arguments that the EPA was inappropriately delegating federal authority to the states.[12] In January 2016, the D.C. Circuit agreed to hear the case, though they did not grant a temporary injunction to stay enforcement of the CPP.[13][14] In February 2016, the Supreme Court ordered a stay in the implementation of the CPP. While the order was unsigned, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan stated they would have denied the request.[7] The D.C. Circuit held an en banc hearing in September 2016.[13]
After the
Affordable Clean Energy rule
With the D.C. Circuit court refusal to grant further abeyance delays, the EPA issued a new proposed set of emissions regulations, the Affordable Clean Energy (ACE) rule, in August 2018. These repealed the CPP, with the EPA arguing these were developed on a misplaced use of statutory interpretation of § 7411(d).[14] The ACE rules were developed based the EPA's responsibility established in Massachusetts v. EPA, but only setting minimal safeguards and requirements for such reductions, targeting only a reduction of between 0.7% and 1.5% of carbon dioxide emissions from 2005 levels by 2030, compared to the 32% set by the CPP. Further, ACE kept the EPA's regulations to only steps "within the fenceline" of a power plant through emissions controls and lacked any allowance towards efficiency improvements or renewable sources. While power plants that implemented emissions controls would still be subject to a New Sources Review, the ACE rule also aimed to weaken the requirements of this review to make it less rigorous and more likely for older plants to pass without having to upgrade their facilities.[18][8] EPA analysis estimated this rule would increase particulate pollution compared to what was proposed under CPP, potentially leading to 1,500–3,600 more premature deaths per year by 2030 and up to 15,000 more new cases of upper respiratory problems, among other human health impacts. The EPA argued that these initial rules were based on a limited interpretation of § 7411(d), and that other aspects of the Clean Air Act can be used to address other pollutants to reduce these numbers.[19] With the release of the ACE rule and intent to repeal to the CPP, the D.C. Circuit dismissed the case over the CPP as moot, which subsequently ended the stay on the CPP issued by the Supreme Court.[20]
The new rules were seen as a boon to the states and companies that had opposed the CPP, particularly by President
The D.C. Circuit ruled 2–1 on January 19, 2021, by happenstance the day before the
Supreme Court
Nineteen other states, led by West Virginia, and power companies challenged[when?] the D.C. Circuit's ruling, asserting that the decision gives the EPA too much power in regulating emissions. The states that joined West Virginia were Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.[24]
In October 2021, four separate petitions (including two from coal corporations and one from North Dakota) were filed, asking the Court to review not only the D.C. Circuit's decision but the interpretation of what powers the EPA has been given by Congress through the Clean Air Act to apply to existing plants under § 7411(d). In the case of West Virginia's petition, there was concern that with the interpretation of § 7411(d) made by the D.C. Circuit court, the EPA "can set standards on a regional or even national level, forcing dramatic changes in how and where electricity is produced, as well as transforming any other sector of the economy where stationary sources emit greenhouse gases."[25] In line with the findings from Michigan v. EPA, the petitioning parties expressed concern that under this interpretation of § 7411(d) "will impose costs we can never recoup because E.P.A., the state, and others will be forced to sink even more years and resources into an enterprise that is — at best — legally uncertain. The court should intervene now."[26]
The Biden administration urged the Supreme Court not to intervene, allowing the EPA to issue its new rule "taking into account all relevant considerations, including changes to the electricity sector that have occurred during the last several years", and allow time for it to be reviewed, rather than make judgment on a speculative EPA rule.[25][26] The Supreme Court certified the four petitions on October 29, 2021, consolidating the cases under West Virginia v. EPA. Due to the Supreme Court granting the case for review, the EPA indicated it would wait until the Court's decision before proceeding with drafting any new rules to replace the CPP or ACE.[27]
On February 28, 2022, oral arguments were heard and the Court considered if aspects of the case fell within its
Opinion of the Court
On June 30, 2022, the Court's 6–3 decision was issued with Chief Justice John Roberts writing the majority opinion joined by the other conservative Justices. Roberts first rejected the EPA's argument that the case was moot since the CPP had been abandoned. Roberts said the case was still live "unless it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'"[29] Roberts further stated that since President Biden has stated on record his intent to "vigorously defend" the same approach as the CPP, that there was cause to review the CPP's rules.[29]
The Court ruled that the EPA does not have Congressional authority to limit emissions at existing power plants through generation shifting to cleaner sources (beyond the fence line), but still can regulate emissions at plants by emissions reductions technologies as they have done in the past.
Justice Neil Gorsuch wrote a concurring opinion that was joined by Justice Samuel Alito. Gorsuch wrote of the importance of the major questions doctrine, stating that "seeks to protect against 'unintentional, oblique, or otherwise unlikely' intrusions" on the areas of "self-government, equality, fair notice, federalism, and the separation of powers".[29]
Justice Elena Kagan wrote the dissent, joined by Justices Stephen Breyer and Sonia Sotomayor, citing concerns over climate change and the Court's involvement to override the expertise of the EPA. Kagan wrote: "The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent."[29]
Impact
Some legal experts have stated that a ruling in West Virginia v. EPA which limits the EPA's power could have a significant impact on the agency's future ability to regulate emissions. In November 2021, Robert Percival, the director of the Environmental Law Program at the University of Maryland, said "This is likely to result in one of the most significant environmental rulings the court has ever reached."[27] Further, because the Supreme Court did not wait until the EPA issued new rules, others felt this signaled that the Court was willing to review Congressional authorization and consider if such authorizations violated the nondelegation doctrine of separation of powers, which would further hamper the EPA's capabilities to regulate emissions.[27] In November 2021, some legal analysts also believed that the Supreme Court's involvement is needed to resolve long-standing conflicts in § 7411(d) and other parts of the Clean Air Act.[32]
The resulting decision did not go as far some experts speculated in removing the Chevron deference or strictly limiting the EPA's powers. However the decision did suggest that major rules made by the EPA or other agencies that go beyond direct interpretation of Congressional mandates may be scrutinized under the major questions doctrine.[33] The rule also curbed further attempts to bring more clean energy sources through EPA regulations under the current CAA language.[34]
The ruling also impacted Biden's climate change plan, which relied on cleaner power sources. While it did immediately set back the U.S.'s efforts to reduce greenhouse gases as much as had been planned, the EPA is still able to mandate emission reduction technology on older plants, such as carbon capture and carbon sequestration, and converting coal plants to operate off natural gas, which burns cleaner than coal. These improvements could reduce the carbon dioxide output from plants by 10% to 15%. However, as guided by Michigan v. EPA, costs must be included in the EPA's assessment, which may limit what technologies could be used. States themselves are also free to set emissions regulations, such as existing Global Warming Solutions Acts, though these regulations and laws are expected to become the subject of litigation.[35]
Legal analyst Ian Millhiser questioned how the proposed CPP could have fallen under the Court's "
Legislative action
In August 2022, the 117th United States Congress passed the Inflation Reduction Act (IRA) following the West Virginia decision. Among other actions, the bill was written towards several of the points raised in the majority decision and possibly overturns it. The law's language addresses the major questions doctrine by explicitly granting EPA new authorities to regulate greenhouse gases. Title VI of the IRA amended the Clean Air Act to explicitly designate carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride as air pollutants, codifying Massachusetts and unambiguously providing the EPA congressional authorization to regulate greenhouse gases.[37] Some legal experts believe this would allow the EPA to set "outside the fence" regulations on existing power plants as to promote clean energy.[38][39] Other analysts say the law does not extend the EPA's authority to alternative sources; Vermont Law School professor Patrick Parenteau said the Act does not include specific language towards generation shifting, leaving it as a potential major questions doctrine concern.[40]
References
- ^ a b Plumer, Brad (November 15, 2013). "Could the EPA push a carbon tax on its own? Maybe — here's how". The Washington Post. Retrieved October 30, 2021.
- ^ Greenhouse, Linda (April 3, 2007). "Justices Say E.P.A. Has Power to Act on Harmful Gases". The New York Times. Retrieved October 30, 2021.
- Harvard Gazette. Retrieved October 30, 2021.
- ^ Association of Washington Business, U.S. Supreme Court rules on EPA power regs, set to hear public sector union dues case (July 7, 2015) (describing the Court's decision as a "landmark ruling"); Parallax World: News Through Perspectives, Power Industry Fights EPA Emissions Rules in Supreme Court (March 25, 2015) (describing Michigan v. EPA as a "landmark" case).
- ^ Grossmann, Andrew M. "Does EPA's Supreme Court Loss Doom Obama's Climate Agenda?". cato.org. Cato Institute. Archived from the original on October 10, 2020.
- ^ Brian Lipshutz, Justice Thomas & the Originalist Turn in Administrative Law, 125 Yale L.J. Forum 94, 100, 101–02 (2015) (internal quotations omitted); see also Sasha Volokh, The Washington Post, Justice Thomas delivers what he promised on February 27, 2001 (March 11, 2015) (describing Justice Thomas' critiques of the delegation doctrine).
- ^ a b Plumer, Brad (February 9, 2016). "The Supreme Court just put a crucial part of Obama's climate plan on hold". Vox. Retrieved October 31, 2021.
- ^ a b Roberts, David (August 19, 2019). "The 6 things you most need to know about Trump's new climate plan". Vox. Retrieved October 31, 2021.
- ^ a b c Davenport, Coral (September 26, 2016). "Obama Climate Plan, Now in Court, May Hinge on Error in 1990 Law". The New York Times. Retrieved October 31, 2021.
- ^ "How We Passed the Clean Power Plan Target a Decade Early". EPSA. May 28, 2020. Retrieved July 1, 2022.
- ^ Millhiser, Ian (February 23, 2022). "The absurd Supreme Court case that could gut the EPA". Vox. Retrieved July 1, 2022.
- ^ a b Plumer, Brad (September 27, 2016). "This court case will decide if Obama's signature climate policy goes down in flames". Vox. Retrieved October 31, 2021.
- ^ a b Meyer, Robinson (September 29, 2016). "How Obama Could Lose His Big Climate Case". The Atlantic. Retrieved October 31, 2021.
- ^ Courthouse News. Retrieved October 31, 2021.
- ^ Eilperin, Juliet (March 28, 2017). "Trump acts to erase Obama's climate legacy". The Washington Post. Retrieved October 31, 2021 – via The Denver Post.
- ^ Roberts, David (October 17, 2017). "Scott Pruitt's quest to kill Obama's climate regulations is deeply shady — and legally vulnerable". Vox. Retrieved October 31, 2021.
- E&E News. Retrieved October 31, 2021 – via Scientific American.
- ^ Irfan, Umair (August 21, 2018). "EPA analysis of its own new climate proposal: thousands of people will die". Vox. Retrieved October 31, 2021.
- ^ a b Freidman, Lisa (August 21, 2018). "Cost of New E.P.A. Coal Rules: Up to 1,400 More Deaths a Year". The New York Times. Retrieved October 31, 2021.
- ^ a b c "DC Circuit Vacates Affordable Clean Energy Rule, Revives Clean Power Plan". JD Supra. January 27, 2021. Retrieved October 31, 2021.
- ^ Brady, Jeff (June 19, 2019). "Trump Administration Weakens Climate Plan To Help Coal Plants Stay Open". NPR. Retrieved October 31, 2021.
- ^ Muscon, Steven (January 19, 2021). "Federal circuit court scraps Trump administration's power plant rule". The Washington Post. Retrieved October 31, 2021.
- E&E News. Retrieved October 31, 2021.
- ^ "Brief of petitioners West Virginia, et al. filed (in 20-1530)" (PDF). Supreme Court.
- ^ a b Barnes, Robert; Grandoni, Dino (October 29, 2021). "Supreme Court will hear cases that could undercut Biden's goals on climate, immigration". The Washington Post. Retrieved October 31, 2021.
- ^ a b Liptak, Adam (October 29, 2021). "Supreme Court to Hear Case on E.P.A.'s Power to Limit Carbon Emissions". The New York Times. Retrieved October 31, 2021.
- ^ E&E News. Retrieved November 2, 2021.
- ^ "Supreme Court justices lean toward hobbling EPA's climate authority". Politico. February 28, 2022.
- ^ SCOTUSBlog. Retrieved June 30, 2022.
- ^ Williams, Pete; Gregorian, Dareh (June 30, 2022). "Supreme Court curbs EPA's power to limit greenhouse gas emissions". NBC News. Retrieved July 1, 2022.
- ^ Totenberg, Nina (June 30, 2022). "Supreme Court restricts the EPA's authority to mandate carbon emissions reductions". NPR. Retrieved July 1, 2022.
- ^ Hijazi, Jennifer (November 1, 2021). "'Blockbuster' Case Threatens EPA's Climate Action, Rule Delays". Bloomberg Law. Retrieved November 2, 2021.
- ^ Frazin, Rachel (June 30, 2022). "Supreme Court's EPA ruling could put other regs in danger". The Hill. Archived from the original on July 6, 2022. Retrieved July 1, 2022.
- ^ Barber, Gregory (June 30, 2022). "The Supreme Court is Jeopardizing Federal Climate Action". Wired. Archived from the original on July 9, 2022. Retrieved July 1, 2022.
- ^ Clifford, Catherine (June 30, 2022). "The Supreme Court's EPA ruling is a big setback for fighting climate change, but not a death knell". CNBC. Archived from the original on July 10, 2022. Retrieved July 1, 2022.
- ^ Millhiser, Ian (June 30, 2022). "The Supreme Court's big EPA decision is a massive power grab by the justices". Vox. Archived from the original on July 9, 2022. Retrieved July 1, 2022.
- Pub. L.117–169 (text) (PDF)
- ISSN 0362-4331. Retrieved August 22, 2022 – via NYTimes.com.
- ^ "Climate Law Gives Clean Air Act a Legal Boost After Court Rebuke".
- ^ "The Inflation Reduction Act doesn't get around the Supreme Court's climate ruling in West Virginia v. EPA, but it does strengthen EPA's future abilities". August 24, 2022.
External links
- Text of West Virginia v. EPA, 596 U.S. ___ (2022) is available from: Justia Oyez (oral argument audio) Supreme Court (slip opinion)