Save Our Environment
The “Major Questions Doctrine” is Formally Named and EPA’s Regulatory Authority under the Clean Air Act is Curtailed: West Virginia, et al. v. EPA, et al. By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section
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n one of the more significant decisions of the October 2021 Term of the U.S. Supreme Court, SCOTUS formally gave name to the Major Questions Doctrine, and used it to prune the regulatory authority of the U.S. Environmental Protection Agency (“EPA”) to address how carbon emissions are reduced from fossil fuel electric generating facilities. The case was West Virginia, et al. v. EPA, et al., 597 U.S. ____(June 30, 2022), and was the last major case decided in the term. Chief Justice Roberts authored the opinion and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Kagan wrote a dissent and was joined by Justices Breyer and Sotomayor. So, West Virginia v. EPA is another 6 to 3 decision, with all the “conservative” justices in the majority, and all the “liberal” justices in the minority. The case turns on the meaning of section 111(d) of the Clean Air Act (“CAA”), 42 U.S.C. §7411(d). The CAA was promulgated in 1970, and has since been amended, in part. Section 111 is known as the New Source Performance Standard section of the CAA, and provides authority to EPA to regulate emissions from new sources of pollution. Section 111(d) also provides EPA with authority to regulate emissions from existing sources of air pollution, if those pollutants have not been regulated under CAA Section 108 (ambient air quality standards), or CAA Section 112 (hazardous air pollutants). In CAA Section 111, EPA was given the authority to adopt standards of performance for emissions that reflect “the degree of emission limitation achievable through the application of the best system of emission reduction … [that] has been adequately demonstrated.” 42 U.S.C. §§7411(a), (b)(1) (emphasis supplied).
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In 2015, the Obama administration enacted the regulatory program known as the Clean Power Plan (“CPP”), which established limits on carbon pollution from electric generating facilities in the United States. No serious dispute exists over the fact that the electric generating industry is a major emitter of carbon into the atmosphere. The CPP also mandated emission reductions by shifting the generation of electricity from fossil fuels (e.g., coal) to renewable energy sources of electricity, among other things. This “system” of emission reduction was named “generation-shifting,” and was challenged by many states and the coal industry, as beyond the authority of EPA. These challenges were filed in the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”). SCOTUS issued a stay of the CPP, while the D.C. Circuit deliberated. After the election of President Trump in 2016, EPA announced that it intended to reconsider the CPP. The D.C. Circuit dismissed the case. The Trump administration ultimately repealed the CPP and enacted an alternative rule, named the Affordable Clean Energy Rule (“ACE Rule”). The ACE Rule was then challenged before the D.C. Circuit, which vacated the repeal of the CPP, and also vacated the ACE Rule, and remanded the case to EPA. However, a number of entities appealed the D.C. Circuit’s vacation of the ACE Rule. With the election of President Biden in 2020, EPA signaled that it would again initiate rule-making proceedings aimed at controlling power plant emissions. A new EPA rule has not been issued (and EPA as a result of the West Virginia v. EPA ruling likely will not be able to propose a “system” of emission control that involves “generation-shifting”). EPA has other administrative tools to address this issue, but they may not be as effective as the “generation-shifting” approach. So, given the procedural posture (CPP stayed, ACE Rule vacated, and EPA considering a new rule), SCOTUS did not have to review this issue, but decided to anyway (because the SCOTUS majority felt the agency action complained of was likely to be repeated).
