At the end of the month, the U.S. Supreme Court is scheduled to hear oral arguments in West Virginia v. Environmental Protection Agency. On one side are the petitioners, a group comprising coal companies and a number of coal-friendly states; on the other, the executive branch’s largest and most powerful force for curbing pollution, climate-conscious states, and health and environmental groups, including NRDC. At stake is nothing less than the power of the EPA to craft and enforce policies that reduce the country’s greenhouse gas emissions and help fight climate change.
The case is far from straightforward. Here’s what you need to know.
First, Some History
Congress passed (and President Richard Nixon signed) the modern Clean Air Act in 1970, authorizing the newly created EPA to fight air pollution at the federal level. The Clean Air Act had an immediate impact. Over the next half century, the act would become a monumental success in improving air quality and public health, saving thousands of lives every year, all while the U.S. economy has tripled in size.
One part of the Clean Air Act specifically targets pollution from industrial sources, explicitly authorizing the EPA to define the “best system of emission reduction” for each different industry. Power plants are the nation’s largest industrial source of air pollution, including the carbon emissions that drive climate change. In 2015, the Obama administration adopted the Clean Power Plan in an attempt to reduce carbon emissions from coal- and gas-burning power plants. Under that plan, the EPA determined that power companies could cut their emissions by a combination of installing emission controls and transitioning to cleaner forms of energy. The Obama EPA projected that the rule would gradually cut power sector carbon emissions by a bit more than 32 percent (from 2005 levels) by 2030.
Mindful of states’ varying circumstances, the Clean Air Act asks states to come up with their own plans for cleaning up existing pollution sources, with EPA in a backup role in case the states fail to act adequately. Coal companies, some parts of the power industry, and allied states sued, and in early 2016, the Supreme Court issued a stay, preventing the Clean Power Plan from taking effect.
But a funny thing happened. Even though the rule never took hold, market forces were driving a major transformation of the industry. Power sector emissions were falling fast, and they reached EPA’s 2030 goal more than a decade early, in 2019.
Oblivious to these trends and denying the reality of climate change, President Trump said he would repeal the Clean Power Plan and replace it with a do-nothing alternative called the Affordable Clean Energy rule. Trump’s rule adopted an “inside the fence” approach, which dropped any limits on gas plant emissions, and restricted standards for coal plants to trivial efficiency improvements that would cut emissions by less than one percent over the coming decade. The Trump EPA claimed it lacked any greater authority.
On the very last full day of the Trump presidency, however, the U.S. Court of Appeals for the District of Columbia struck down Trump's repeal of the Clean Power Plan and his replacement plan. In doing so, that court rejected the Trump administration’s position that the Clean Air Act mandated an only inside-the-fence approach. In effect, Joe Biden inherited—on day one of his presidency—an opportunity to take a fresh approach and, indeed, the new EPA administrator, Michael Regan, promised to write a new rule on a “clean slate.”
But the coal companies and coal-loving states decided to try to block the EPA even before the new rule was written. Together, they petitioned the U.S. Supreme Court to reverse the D.C. Circuit’s decision. And surprisingly—given that the Clean Power Plan never went into effect and never will—the Supreme Court agreed to consider the case. West Virginia v. Environmental Protection Agency was on the docket.
At the Heart of the Case
So with no Clean Power Plan on the horizon, and with no replacement for the Clean Power Plan even on the horizon, you might be wondering what, exactly, the petitioners in this case are hoping to achieve. The answer is that they want to permanently weaken the Clean Air Act—and, along with it, the EPA’s ability to do its job. As David Doniger, senior strategic director of NRDC’s Climate & Clean Energy program, puts it: “The coal companies and their allies are shooting for a broad rule that the EPA can’t use the Clean Air Act to tackle any significant new problem without going back to Congress each time for new, and very detailed, legislation. They’re counting on lobbyists and dark money to keep Congress gridlocked, so that those new laws are impossible to pass.”
There’s just one problem with that idea: The wording of the Clean Air Act makes it quite clear that the EPA already has the authority to regulate power plants’ carbon emissions. “Some justices are suspicious of using old laws to confront new problems,” Doniger says. “But when Congress passed the Clean Air Act more than 50 years ago, that’s exactly the assignment they gave EPA: to deal not only with the pollutants and industries that were in front of Congress in 1970, but to act when science identifies new dangers, and to update standards when there are new and more effective pollution controls.”
Major Questions Doctrine
Why are the coal companies and their supporters making this gambit now? They hope that at least five of the Supreme Court’s six conservative justices will expand and apply a still developing jurisprudential theory known as the major questions doctrine. Put simply, this doctrine holds that the courts shouldn’t defer to agencies (as they have been doing for the last four decades or more) when an agency appears to do something novel and potentially out of its area of expertise, if that regulation could have “vast economic and political significance.” And who gets to define what a “major question” is and what an agency is permitted to do, you ask? Why, the justices themselves, of course.
Doniger describes the major questions doctrine as “a judge-made doctrine that’s still developing.” If the current court applies it reservedly, he says, “it could turn into a relatively minor interpretive tool that judges sometimes employ when construing statutes.” But if the majority decides to apply it more aggressively, as some justices seem ready to do, ”it could turn into a huge roadblock to action by the EPA under the Clean Air Act, and other laws that Americans count on to control air and water pollution and much more. And it could also block other agencies from doing their work—for example, assuring safe food, safe cars, and safe planes, or protecting consumers, investors, and workers from corporate misbehavior.”
Whether one likes or dislikes the major questions doctrine, Doniger believes that it has no place figuring into the justices’ deliberations over West Virginia v. Environmental Protection Agency. “This is a very poor case for extending the doctrine,” he says. “It’s supposedly triggered when new rules with ‘vast economic and political significance’ are at issue. But there are literally no carbon rules in place right now for existing power plants. The petitioners are experiencing literally zero regulatory costs. Even if the original Clean Power Plan were still around, market forces have changed the power sector so fast that, by 2019, it had already met the plan’s 2030 emission goals—without any regulation in effect. So the coal companies and states have literally nothing to complain about.”
This leads naturally to the question: Why did the Supreme Court agree to consider this case in the first place? Do the petitioners even have the standing required for a case to be heard in any court, much less the Supreme Court? The U.S. Department of Justice, representing EPA and the environmental and health groups that are parties to the case, believes the answer is: No, they don’t. This only makes the decision to hear the case all the more mysterious. “The courts are supposed to wait until there’s a new rule—with actual impact—for them to review. And the Supreme Court has said time and again that it doesn’t give ‘advisory opinions’ before rules are issued.” It remains to be seen whether the Supreme Court will dispose of the case on this ground—putting off review until there’s a new rule—or barrel forward to decide the coal companies’ legal claims in the abstract.
For more than half a century, the Clean Air Act has been the legal doorway through which the EPA moves to keep our air safe to breathe—and to curb our climate-damaging pollution. “Whether the court closes that door or leaves it open,” says Doniger, “we’ll have to see.”
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