The Supreme Court really is willing to hear out West Virginia v. EPA. The court case some consider to be about nothing has far-reaching implications when it comes to what kind of regulating power federal agencies have, to say nothing of the environmental consequences of a ruling in favor of West Virginia and the many other states suing the Environmental Protection Agency. It’s a consolidation of three cases with roots in the Obama-era Clean Power Plan (CPP), a policy that never even took effect and was subsequently repealed and replaced by Trump’s polluter-friendly Affordable Clean Energy (ACE) rule. Instead of considering the environmental consequences of leaving the EPA helpless to regulate emissions, justices zeroed in on the major questions doctrine, a legal theory stating that Congress must be explicit in allowing agencies to regulate issues “of deep economic or political significance”—in this case, whether or not the EPA can regulate power sector emissions.
Even considering the statute in which the EPA was granted the authority to regulate greenhouse gases from power plants shows the court skewing more toward conservative talking points. For example, Fox News billed the case as an issue of governmental overreach and lamented the potential shuttering of heavy-polluting power plants in an attempt to “reorder the entire energy grid,” whatever that means. West Virginia Solicitor General Lindsay See lamented that the EPA’s ability to regulate could mean that coal plants would shutter because closing them down is better business than keeping them in operation. See also made it clear she was in support of the ACE rule, which was more focused on the efficiency of power plants than how much those power plants emit while in operation. She believed Congress hadn’t delegated the task of regulating power plant emissions to the EPA clearly enough, which immediately gave outgoing Justice Stephen Breyer pause. Breyer hadn’t read a prior ruling about the case that was issued by the D.C. Circuit Court, but boy was he raring to go with the goofy comparisons.
Is it worth reiterating Justice Breyer’s questions about loving all fish versus loving salmon, which falls under loving all fish? Or the barely related scenario of regulating ads for “four-foot cigars for hookahs”? Not really, but the Court certainly had a laugh at Breyer’s antics.
At one point, the court erupted in laughter after Beth Brinkmann said Justice Breyer’s comparison of regulating power company emissions to the FDA contemplating hookah lounges was a helpful hypothetical. Listening to attorneys on the side of polluters and states rolling in the fossil fuel funds wasn’t exactly illuminating. Solicitor General Elizabeth Prelogar provided perhaps the only news-worthy comments of the entire proceedings, which only lasted until early afternoon. Prelogar said the Biden administration will release new regulations for power plant emissions “this calendar year.” She also noted that the industry itself is changing, therefore the regulations themselves aren’t as transformational as the plaintiffs keep claiming, and that despite never being implemented, the CPP’s goals were met nationally. Breyer was chided by Prelogar for failing to do the homework and questions from Justice Samuel Alito regarding whether the EPA can regulate single-family homes was met with a succinct “no.”
It’s troubling but unsurprising that the Court would consider “major questions” over the minutiae of regulation, throwing out cases involving vaccine mandates and how or why the FDA regulates tobacco. This is, after all, a court that continues to skew more and more conservative and the major questions doctrine itself is a theory that most right-leaning judges are becoming obsessed with. Even West Virginia Attorney General Patrick Morrisey took some time to crow about what this could mean for fans of small government. “West Virginia vs. EPA is one of the most important administrative law and separation of powers cases in quite some time,” Morrisey noted in a press release following oral arguments. “This case will determine who decides the major issues of the day: Unelected bureaucrats or Congress, comprised of those elected by the people to serve the people.”
A bit of background on West Virginia v. EPA, which is far from over: The case itself is a consolidation of three cases and dates back to the CPP’s unveiling in 2015, though issues of how the EPA handles emissions monitoring and regulation date further back than that, as with 2007’s Massachusetts v. EPA Supreme Court ruling affirming that the EPA has the authority to regulate greenhouse gas emissions. With the CPP, the Obama administration looked toward power plants and their emissions. The CPP called for a reduction of CO2 emissions for states based on three criteria: Increasing long-term efficiency for existing fossil fuel plants, swapping out coal power and using natural gas instead, and switching to more renewables. Those goals not only seem downright antiquated but the deadlines imposed by the policy have all since passed. In fact, the CPP never even had a chance to be adopted due to protest from more than two dozen states. In 2016, the Supreme Court chose to stay the regulation until it could be heard by a lower court. The plan ultimately languished and was repealed and replaced by the Trump administration’s ACE rule in 2019.
If it’s a matter of this larger—dare I say major—question, then it’s a matter of looking to the justices themselves, contends another attorney familiar with the case. Chief Justice John Roberts may appear skeptical of the executive branch but is still open to upholding vast exercises of federal authority, so it will be interesting to see where he stands with regard to how federal agencies essentially do business. Meanwhile, Justice Amy Coney Barrett appears to prefer rules to standards and is willing to take her time on major rulings, especially when asked to envision a future in which regulations are applied a certain way. She even asked on Monday if there was “daylight” between the major questions doctrine and the non-delegation doctrine, the latter a principle in which legislative bodies are unable to delegate their powers to private entities or federal agencies. Making this distinction sheds much light into Justice Barrett’s thinking on the case.
Legal experts cite a bevy of cases that may appear on their surface unrelated but ultimately prompt justices to question what overreach may look like, as with the 2019 ruling in Gundy vs United States, in which the Supreme Court affirmed that the U.S. attorney general has the power to enforce the Sex Offender Registration and Notification Act (SORNA). It was Justice Elena Kegan who wrote the plurality opinion in that case, noting that the section in SORNA granting the U.S. attorney general that power does not violate the non-delegation doctrine—a principle in which legislative bodies are unable to delegate their powers to private entities or federal agencies—and writing that “if SORNA’s delegation [to the Attorney General] is unconstitutional, then most of Government is unconstitutional.” Kagan likely won’t change the outcome of West Virginia v. EPA given she made clear on Monday that the statue allowing the EPA to regulate greenhouse gas emissions from power plants may not be as wide-reaching as folks like See let on.
Kagan and Justice Sonia Sotomayor took great pains to ask thoughtful questions regarding the statute itself and major questions, though even Justice Sotomayor at times had trouble keeping key environmental regulation details straight, some of which don’t apply to West Virginia vs EPA, such as the Clean Water Act. It’s anyone’s guess whether West Virginia v. EPA will end up being the right case to consider the regulatory ability of federal agencies. If anything, this case shows just how important it is to confirm a Justice like Ketanji Brown Jackson, who may have a mixed record on the environment but is supported by groups like Sierra Club and EarthJustice for her commitment to justice for Black and brown communities, which extends to environmental justice.
“Often the Supreme Court has the last word on how, and sometimes whether, our laws designed to protect the environment and public health are enforced. This year alone, the Court will hear two cases that could have a profound impact on the government’s ability to address the climate crisis and protect the nation’s wetlands, streams and waterways. Those cases underscore the importance of confirming justices and judges, like Jackson, who respect precedent and recognize the government’s role in addressing consequential societal issues, like protecting the environment and public health,” the National Defense Resource Council noted.“
Call on Congress to confirm Jackson.
