On Monday, the US Supreme Court heard oral arguments in West Virginia v. the Environmental Protection Agency, a case that could limit the EPA’s power to curtail greenhouse gas emissions in the power plant sector.
West Virginia is joined by those other bastions of clean air (Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming) in challenging the agency’s authority to regulate carbon emissions under the Clean Air Act.
This lawsuit has been kicking around since 2015 when the Obama administration unveiled its most ambitious plan to tackle climate change. The Clean Power Plan (CPP) set a goal of cutting emissions from the power sector by 32 percent by 2030 compared with 2005 levels. It directed states to draft plans to phase out coal and generate more renewable energy. A year later, the Supreme Court ruled that states could ignore the rule while dozens of coal-friendly lawsuits worked their way through the judicial system.
Then Donald Trump became president and his administration, which never met a pollution reducing measure it didn’t try to overturn, repealed the Clean Power Plan and replaced it with a much weaker rule that was subsequently blocked. The Biden administration’s EPA has not put any rule in place yet, which means that there currently is no EPA rule regulating greenhouse gas emissions from existing power plants. So, why are petitioners suing to stop a law that doesn’t exist? Because they hope to limit how EPA regulates polluters going forward.
Despite the Biden administration’s argument that the court should wait until there is an actual rule in place, SCOTUS agreed to hear the case and, given its current make-up, hamstringing the EPA seems like a very real possibility. During the two-hour hearing where the lawyers made mostly technical points, Justice Samuel A. Alito Jr. made clear his skepticism that the EPA has the authority to set industrial and energy policy.
Plaintiffs are also attempting to bootstrap the conversative legal theory of the major questions doctrine, which suggests that federal agencies need a congressional mandate to develop and enforce regulations that have significant implications. A finding in favor of the petitioners would undoubtedly undermine the purpose for which the EPA was established – to protect human and environmental health.
Without the ability to enforce the Clean Air Act in a way that takes the client science into account, we can not meet the goal of significantly reducing emissions. The agency would also have much less flexibility in dealing with new pollutants or toxic chemicals. For example, the EPA wouldn’t be able to impose new restrictions and regulations regarding “forever chemicals” or PFAS under the Clean Water Act.
Such a ruling would also set a precedent in which other federal agencies would be sidelined while waiting for congress to act. This very conservative court has already ruled that the CDC lacks the authority to impose a moratorium on evictions and that OSHA can’t mandate vaccines or frequent testing for large businesses.
If SCOTUS rules in favor of West Virginia and against enforcing the Clean Air Act, next they will curtail the agency’s ability to enforce the Toxic Substances Control Act or the Safe Drinking Water Act. Count on it.
