Admin Law, Air, Carbon Capture, Energy, Environmental Justice, Judicial Review

SCOTUS Hears West Virginia v. Environmental Protection Agency

A case on the Supreme Court’s docket this year that has been attracting the attention of many environmentalists is West Virginia v. Environmental Protection Agency.  

Tyler Takvor 

Fordham ELR Staffer ’21-’22

The case concerns the Trump administration’s repeal of the 2015 Clean Power Plan (CPP). The plan was approved under the Obama administration; however, it was never put into place. The CPP set guidelines and targets for states to limit carbon dioxide emissions from power plants. The plan looked to limit emissions from the electricity industry to at least 30% below 2005 levels by 2030. For states to achieve such a goal they would be forced to alter the technology they were using. Most of the shift in the electrical sector would be towards implementing renewable sources of energy. 

The Obama administration claimed to have the authority to enact the CPP under the Clean Air act which requires the Environmental Protection Agency to consider the best-available technologies when crafting regulations to lower air pollution. The CPP was revised however after the 2016 election with the Trump administration replacing it with the Affordable Clean Energy Plan, which took a narrower approach to interpreting the Clean Air Act. 

In 2021 however, a federal appeals court in Washington DC rejected the Trump administration’s repeal of CPP. The court ruled that the Trump administration’s repeal of CPP was arbitrary and capricious. The rejection by the court of appeals led way to the case of West Virginia v. Environmental Protection Agency, where one of the plaintiffs has challenged the Environmental Protection Agency’s authority to regulate greenhouse gas emissions so broadly.

The issue that has been attracting so much attention however is the fact that the Biden administration has not reimplemented the CPP. Thus, the plaintiffs in West Virginia are not challenging any ongoing regulation. Rather the case seems to be being brought out of fear and anticipation for whatever plan the Biden administration, or any future administration may create. Therefore, the plaintiffs are bringing the case under what is known as the major questions doctrine. The doctrine contends that courts must halt agencies from having too much power and going too far past what their enabling statute intended. 

West Virginia attorney general Patrick Morrisey is now arguing that for the EPA or any other federal agency to implement such a sweeping rule they must seek congressional approval first. If SCOTUS sides with West Virginia it would make it so Congress is required to approve of measures taken by EPA when they attempt to regulate in a more sweeping manner. 

Oral arguments began on February 28th, 2022, for what looks to be the one of the most significant environmental cases the Court has heard in years. The consequences of the West Virginia case may significantly impede the Biden administration’s hopes of implementing their climate agenda. Moreover, the impacts of this case may be heard throughout the administrative state. Such a ruling however seems imminent with the current make-up of the Supreme Court. Looking to Justice Gorsuch’s dissent in Gundy v. United States where he describes the nondelegation doctrine as requiring a federal law to authorize an agency to regulate in a “sufficiently definite and precise” manner and the addition of Justices Barrett and Kavanagh, Attorney General Morrisey’s chances for success are looking strong. 

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