On Feb. 28, 2022, the U.S. Supreme Court will hear oral arguments in West Virginia v. EPA, a case that centers on the U.S. Environmental Protection Agency’s authority to regulate greenhouse gas emissions that drive climate change. How the court decides the case could have broad ramifications, not just for climate change but for federal regulation in many areas.
This case stems from actions over the past decade to reduce greenhouse gas emissions from power plants, a centerpiece of U.S. climate change policy. In 2016, the Supreme Court blocked the Obama administration’s Clean Power Plan, which was designed to reduce these emissions. The Trump administration repealed the Clean Power Plan and replaced it with the far less stringent Affordable Clean Energy Rule. Various parties challenged that measure, and a federal court invalidated it a day before Trump left office.
The EPA now says that it has no intention to proceed with either of these rules, and plans to issue an entirely new set of regulations. Under such circumstances, courts usually wait for agencies to finalize their position before stepping in. This allows agencies to evaluate the evidence, apply their expertise and exercise their policymaking discretion. It also allows courts to consider a concrete rule with practical consequences.
From my work as an environmental law scholar, the Supreme Court’s decision to hear this case is surprising, since it addresses regulations the Biden administration doesn’t plan to implement. It reflects a keen interest on the part of the court’s conservative majority in the government’s power to regulate – an issue with impacts that extend far beyond air pollution.
How much latitude does the EPA have?
The court granted petitions from coal companies and Republican-led states to consider four issues. First, under Section 111 of the Clean Air Act, can the EPA control pollution only by considering direct changes to a polluting facility? Or can it also employ “beyond the fenceline” approaches that involve broader policies?
Section 111 directs the EPA to identify and regulate categories of air pollution sources, such as oil refineries and power plants. The agency must determine the “best system of emission reduction” for each category and issue guidelines quantifying the reductions that are achievable under this system. States then submit plans to cut emissions, either by adopting the best system identified by the EPA or choosing alternative ways to achieve equivalent reductions.
In determining how to cut emissions, the Trump administration considered only changes that could be made directly to coal-fired power plants. The Obama administration, in contrast, also considered replacing those plants with electricity from lower-carbon sources, such as natural gas and renewable fuels.
The question of EPA’s latitude under Section 111 implicates a landmark decision of administrative law, Chevron v. Natural Resources Defense Council. That 1984 ruling instructs courts to follow a two-step procedure when reviewing an agency’s interpretation of a statute.
If Congress has given clear direction on the question at issue, courts and agencies must follow Congress’ expressed intent. However, if the statute is “silent or ambiguous with respect to the specific issue,” then courts should defer to the agency’s interpretation of the statute as long as it is reasonable.
When #SCOTUS hears arguments in West Virginia v. EPA on Feb. 28, they will arrive armed with information from reams of briefs prepared by some of the nation’s leading environmental lawyers. Here are some of the lawyers to know:https://t.co/PZhJ0iU6ac
— E&E News (@EENewsUpdates) January 10, 2022
Has Congress delegated too much power to the EPA?
Finally, the court will consider whether Section 111 delegates too much lawmaking authority to EPA – a further opportunity for conservative justices to curb the power of federal agencies. The nondelegation doctrine bars Congress from delegating its core lawmaking powers to regulatory agencies. When Congress authorizes agencies to regulate, it must give them an “intelligible principle” to guide their rulemaking discretion.
For decades, the court has reviewed statutory delegations of power deferentially. In fact, it has not invalidated a statute for violating the nondelegation doctrine since the 1930s.
In my view, Section 111 should easily satisfy the “intelligible principle” test. The statute sets out specific factors for the EPA to consider in determining the best system of emission reduction: costs, health and environmental impacts, and energy requirements.
Still, the case presents an opportunity for the court’s conservatives to invigorate the nondelegation doctrine. A 2019 dissenting opinion by Justice Gorsuch, joined by Chief Justice John Roberts and Justice Clarence Thomas, advocated a more stringent approach in which agencies would be limited to making necessary factual findings and “filling up the details” in a federal statutory scheme. Whether Section 111 – or many other federal laws – would survive this approach is unclear.
Professor Lin was a trial attorney for the Environment and Natural Resources Division of the U.S. Department of Justice from 1998 to 2003. He served as a law clerk to the Honorable Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit and to the Honorable James Browning of the U.S. Court of Appeals for the Ninth Circuit.
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