By: William Frank Weber
On February 28, 2022, the Supreme Court of the United States will hear oral arguments in West Virginia v. EPA. The case centers around the Clean Power Plan (CPP), a rule published by the EPA under the Obama Administration, on October 23, 2015.[1] The rule, if enacted, would have been the first national regulatory standard over greenhouse gas emissions from power plants.[2] The case was filed by a group of 20 states and coal companies arguing that the EPA does not have the authority to issue the CPP. However, as will be explained later, the CPP is unlikely to exist in any form in the near future. The questions become how we got here, why the case is moving forward, and what are the ramifications of this case once a decision is made by the Court. So, how did we get to the Supreme Court on February 28?
How We Got Here
The idea behind the CPP was that it would go beyond the usual EPA mandates of calling on coal-firing power plants to install devices to make them burn more efficiently, but it called on these plants to shift away from coal and towards cleaner methods of generating energy.[3] The CPP was never actually implemented.[4] The CPP was challenged, even before the final promulgation, by West Virginia and a group of other states.[5] This original suit was dismissed as premature but after the final rule was published the group of states once again challenged the CPP in the D.C. Circuit, with the opponents of the plan alleging that the law far exceeded the EPA’s authority granted in the Clean Air Act (CAA).[6] The plan was never able to come into effect for a variety of factors. On February 9, 2016, the Supreme Court, on a 5-4 vote along party lines, announced a stay of the CPP until a final decision was granted.[7] While this was a temporary victory for the opponents of the CPP, seemingly the final nail in the coffin came with the election of Donald Trump in 2016.[8] This prophecy was seemingly fulfilled when the Trump Administration EPA passed the Affordable Clean Energy (ACE) rule, replacing the CPP with much weaker standards.[9] The ACE rule itself was eventually vacated by the Court of Appeals for the D.C. Circuit but the court did not reinstate the CPP.[10] This decision will also be reviewed by the Court in West Virginia v. EPA.[11]
However, the CPP is not going to be reinstated with the exit of the Trump Administration and the entry of the Biden Administration.[12] The Biden Administration determined, in February of 2021, that reinstating the CPP would not make sense as the deadline for states to submit State Plans has already passed and many of the reduction goals set by the CPP for 2030 have already been met.[13] If the CPP has already died and is not being resurrected, why is the case even moving forward?
Why the Case is Moving Forward
Even though the CPP will not be revived by the Biden Administration, the 20 states, energy companies, and owners of coal mines that originally challenged the rule are moving forward with the case. Why? Well, the question presented in the petition for a writ of certiorari provides us with a suitable starting point. The issue was not simply with the CPP, but with the authority, or perceived lack of authority that the EPA had in issuing the CPP. Patrick Morrisey, the attorney general (AG) for West Virginia, words the question presented as whether the CAA authorized the EPA “to issue significant rules – including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy – without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements?”[14] The petitioners are calling not just for the Court to say that the CPP was unconstitutional and beyond the scope of the CAA, but for the Court to limit the CAA and restrict the EPA’s abilities to reduce the greenhouse gas emissions in the future.[15] Morrisey sees this case as a way to protect West Virginia jobs and keep down the price of electricity.[16] But he is also couching this case as determining whether Congress or the EPA, as a federal agency has the power to drive decisions on how this country will address climate change.[17] Those who oppose the CPP argue that in order to decarbonize presents such a substantially important question, that Congress must give a clear statement before the EPA can act in that manner and that for Congress to allow an agency to so vastly upset the balance between the federal government and the state a statement in plain terms must be given.[18] The future of how the EPA would be able to address greenhouse gas emissions and climate change in general is hanging in the balance of that decision, but looking even beyond this enormous issue, there are greater consequences at stake.
The Ramifications of West Virginia v. EPA
The least likely scenario for the case is that the justices rule against the group of states, energy companies and owners of coal mines. A ruling against these parties would most likely maintain the current status quo. The ruling would likely only say that the EPA did have the power to issue the CPP, a power the agency clearly already thought it had when it issued the rule. A ruling in favor of the EPA would also likely embolden the Biden Administration to promulgate a rule similar in scope to the CPP in terms of reducing greenhouse gases and combatting climate change.
However, the most likely scenario to occur will be the court ruling in favor of those parties attempting to attack the power of the EPA to combat climate change through decarbonization and equally strong measures. The most obvious ramification of this ruling would be that aggressive attacks on climate change by the EPA, such as the CPP, would be severely limited. However, this case is likely to go even beyond that limitation of the EPA’s power. Looking at the question presented by West Virginia, it is clear that the parties on that side are painting the EPA’s actions not just beyond the scope of its delegated authority but also as unconstitutional.[19] The most aggressive ruling could alter the entire structure of the United States government.[20] This is because the true attack of the suit against the EPA strikes at the concept of delegation.
Delegation allows Congress to lay out a broad policy and then delegate an agency to implement that policy through binding regulations.[21] Congress relies on this process because it can help make regulations move faster instead of having to constantly be passed by Congress for each change, it insulates these decisions from the game of politics, and, perhaps more importantly, it allows experts in a field to make a decision in that field instead of relying on Congress members who may have very little knowledge on the subject.[22] The attack on delegation in West Virginia v. EPA comes in through the nondelegation doctrine. The nondelegation doctrine expresses that Congress cannot delegate its legislative authority to the executive branch, including agencies like the EPA.[23] The nondelegation doctrine, and the call for its use to limit the authority of executive agencies, began to pick up steam under the Obama administration. Justice Neil Gorsuch has laid out his approach to nondelegation that a federal law delegating such authority to regulate must be “sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.”[24] In Gundy, Gorsuch’s view gained the support of fellow Justice Clarence Thomas and Chief Justice John Roberts.[25] Justice Samuel Alito, a fellow conservative on the court, did not join Gorsuch, instead writing a separate opinion.[26] But Alito indicated he was in favor of seeing the rule change when a majority sat together on this issue on the same case.[27] Justice Brett Kavanaugh, in a brief opinion on why the Court should not hear a case, wrote that Gorsuch’s view of the nondelegation “may warrant further consideration in future cases.”[28] Kavanaugh read Gorsuch’s opinion as saying Congress cannot allow an “agency to exercise regulatory authority over a major policy question of great economic and political importance.[29]
Since Gundy and Paul, the Supreme Court has gained another conservative voice in Justice Amy Coney Barrett. But her vote is largely irrelevant. Even if Justice Barrett voted with the liberal wing of the Court, which is very unlikely, five of the Justices support Gorsuch’s interpretation of nondelegation. The “sufficiently definite and precise language” is certainly vague. Gorsuch gave no indication what the language meant in his dissent.[30] But if the Court follows what Kavanaugh wrote about major policy questions, which is not farfetched, then the EPA would certainly not be able to make a move combatting climate change without congressional approval, from a sharply divided Congress.
But this decision moves beyond the bounds of environmental law. Certainly, much of federal environmental law would be limited, restricted, or destroyed by a decision promoting Gorsuch’s idea of nondelegation, but it would affect every delegated power Congress has ever given to an agency. Congress has delegated powers on issues such as workplace safety, access to birth control, overtime pay, and vaccinations to executive agencies. These issues could all be seen as major questions of economic and policy importance and the Court’s decision in West Virginia v. EPA could jeopardize any regulations issued by the agencies that oversee these decisions.
February 28, 2022 is the day oral arguments will be held to support or deny the power of the EPA, but these oral arguments will also decide whether the United States government can continue to function in the way it is today largely configurated.
[1] Sabin Center for Climate Change Law, West Virginia v. EPA, Columbia Law School, https://climate.law.columbia.edu/content/west-virginia-v-epa (last visited Feb. 19,2022).
[2] Id.
[3] Ian Millhiser, A new Supreme Court case could gut the government’s power to fight climate change, Vox (Nov. 3, 2021, 10:30 AM), https://www.vox.com/2021/11/3/22758188/climate-change-epa-clean-power-plan-supreme-court.
[4] Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021).
[5] Sabin Center, supra note 1.
[6] Id.
[7] Ian Millhiser, The Supreme Court’s coming war with Joe Biden, explained, Vox (Mar. 27, 2021, 9:00 AM), https://www.vox.com/22276279/supreme-court-war-joe-biden-agency-regulation-administrative-neil-gorsuch-epa-nondelegation.
[8] Id.
[9] Millhiser, A new Supreme Court case, supra note 3.
[10] Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021).
[11] Millhiser, A new Supreme Court case, supra note 3.
[12] Joseph Goffman, Status of Affordable Clean Energy Rule and Clean Power Plan (EPA Feb. 12, 2021).
[13] Id.
[14] Petition for Writ of Certiorari, West Virginia v. EPA, 142 S. Ct. 420 (2021) (No. 20-1530).
[15] Millhiser, A new Supreme Court case, supra note 3.
[16] WDTV News Staff, AG Morrisey speaks on EPA lawsuit in Washington, Gray Media Group (Feb. 17, 2022, 2:53 PM) https://www.wdtv.com/2022/02/17/ag-morrisey-speaks-epa-lawsuit-washington/.
[17] Id.
[18] Id.
[19] Petition for Writ of Certiorari, supra note 14.
[20] Millhiser, A new Supreme Court case, supra note 3.
[21] Id.
[22] Id.
[23] A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
[24] Gundy v. United States, 139 S. Ct. 2116 (2019) (Gorsuch, J., dissenting).
[25] Id.
[26] Gundy v. United States, 139 S. Ct. 2116 (2019) (Alito, J., dissenting).
[27] Id.
[28] Paul v. United States, 140 S. Ct. 342, (2019), cert. denied, (Kavanaugh, J., respecting denial of cert.).
[29] Id.
[30] Gundy v. United States, 139 S. Ct. 2116 (2019) (Gorsuch, J., dissenting).