As if we need more to worry about, an anticipated United States Supreme Court ruling in West Virginia vs. the Environmental Protection Agency may permanently alter the ability of that agency to regulate climate change.
This case on which oral arguments were heard on February 28, 2022, had its genesis in the Clean Power Plan (“CPP”), a 2015 Obama administration initiative in which the EPA gave each state a goal for cutting CO2 power plant emissions. Arguably justified by the Clean Air Act, the CPP provided that if a state didn’t submit a plan, the EPA could submit its own. According to the EPA, power plants emit the most mercury (50%), acid gases (75%) and toxic metals (60%), so the CPP sought to cut these numbers.
But before this rule could be implemented, the Supreme Court suspended it in 2016. Then President Trump blocked it entirely with an executive order and replaced it with an EPA policy more favorable to power plants. The Biden Administration scrapped the Trump Administration policy but has not embarked on its own power plant regulations, awaiting a decision in this case. So even though the CPP is defunct, the policy under which it was established is subject to legal challenge.
Enter the petitioners in the West Virginia case – a bloc of 19 red states and the coal industry – who contend that the CPP standards are “generation shifting”. This means that the CPP and its progeny would require power plants to shift away from dirtier technologies towards cleaner energy production methods, essentially moving away from coal. They argue that the Clean Air Act only requires states to comply with EPA emission standards with plans that apply to existing sources. Under that argument, a coal plant like the John Amos Plant in Poca, West Virginia, might be required to install a new emission reducing device, but it could not be required to shift to new energy production methods entirely.
To dive further into the legal weeds, the Court historically requires judges to defer to an agency’s reading of a federal statute, meaning that the EPA’s interpretation of the Clean Air Act in its promulgation of the CPP should stand. However, there is an exception when the “major questions doctrine” applies, which flips that presumption on its head. According to a 2016 case in which that doctrine was announced, where an agency decision has “vast economic and political significance” the Court can block the regulation unless it is based on clear statutory authority.
Armed with the purely subjective “major questions” standard, the Court could agree with West Virginia Attorney General Patrick Morrisey and the other states that Congress should make the rules, not unelected EPA bureaucrats. It could hold that the EPA’s setting of aggressive power plant emission standards that require a shift away from coal is simply a bridge too far, one with substantial economic and political impact on the industry. In this way, a broad ruling by the Court could preemptively undermine climate change policy. On the other hand, the Court could simply dismiss the case since the challenged plan is defunct. Ironically, the reductions sought by the CPP have already been achieved by the market driven closure of hundreds of power plants.