West Virginia v EPA
On June 30, 2022, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency was filed. In a 6-3 opinion, the Court ruled that Congress did not grant the Environmental Protection Agency (EPA) in the Clean Air Act (CAA) the authority to devise emission caps on carbon emissions. Headlines swept the nation ranging from disappointment to outright misinformation.
How Did We Get Here?
The Clean Air Act was passed in 1970 as a comprehensive federal law that regulates air emissions from stationary and mobile sources. The CAA covers a wide scope of air topics including the National Ambient Air Quality Standards (NAAQS), State Implementation Plans (SIPs), and lays the groundwork for Major Source thresholds (a.k.a. the Title V Program). The CAA has been used by the EPA for decades to regulate sources of air pollution and create environmental programs, even if the CAA does not expressly mention the pollutant or program.
As society advanced and technology furthered our ability to evaluate sources of air pollution, many environmental leaders and researchers began to address carbon emissions throughout the country. Did you know that coal-fired power plants are the single-largest source of carbon emissions in the United States? In 2015, as a response to the growing need for regulations to curb carbon emissions, the EPA created the Clean Power Plan (CPP) in order to address carbon dioxide emissions from existing coal and natural gas-fired power plants. The EPA cited Section 111 of the Clean Air Act as the basis for the CPP. Although Section 111 promulgates New Source Performance Standards, certain pollutants from existing sources were regulated under Section 111(d). Under this section, individual states set the actual enforceable rules surrounding an environmental program, while the EPA set the emission limit with which the entity must comply. Interestingly, this section of the CAA has only been cited a handful of times since the CAA’s enactment in 1970. The CPP set emission limits based on three different criteria, most of which encouraged a shift in energy production from high-emitting sources to low-emitting sources (i.e., a change from coal to renewable energy).
As a result of both lobbying efforts and administration changes, the CPP was stayed by the Court in 2016 and underwent a cycle of repeals and rebranding for several years. The EPA reevaluated the regulatory authority of the plan (specifically the use of Section 111(d)) and replaced the CPP with the Affordable Clean Energy (ACE) rule, based on a different Section 111 citation than before. With the promulgation of ACE, many states and industry leaders petitioned the courts on the legality of the EPA’s regulatory reach.
This issue was finally brought to the Supreme Court in West Virginia v. Environmental Protection Agency. In a 6-3 opinion, SCOTUS invoked explicitly for the first time in court history the “major questions doctrine”. The major questions doctrine requires that Congress speak clearly when authorizing agency action in certain extraordinary cases to strike down an agency rule. In summary, the court ruled that because the CAA did not explicitly address carbon emissions, the EPA could not use the CAA to do so. In the future, Congress would have to either amend the CAA to explicitly include carbon emissions or pass an entirely new act.
This leads us to June 30, 2022. The SCOTUS opinion was handed down, and the news took the public by storm. Headlines ranged from “Supreme Court Limits EPA’s Power to Curb Emissions” (Harvard School of Public Health) to “US Supreme Court Deals Blow to Climate Action” (Human Rights Watch). I saw countless posts across social media platforms claiming that SCOTUS had taken away the government’s right to regulate any air pollutants, as well as concern for the future of global warming and carbon emissions. In light of the sensationalism that surrounded this court ruling, it is important to know the facts and how they may impact the future of our legal system, as well as the EHS (Environmental, Health and Safety) industry.
What did the court do?
SCOTUS ruled that Congress must pass explicit legislation giving the EPA authority to regulate carbon emissions from coal and natural gas-fired power plants.
What did the court NOT do?
West Virginia v. EPA did not limit the EPA’s power to regulate and control criteria air pollutants (carbon monoxide, ground-level ozone, lead, nitrogen oxides, particulate matter, and sulfur dioxide) and hazardous air pollutants.
What does this mean for me?
If your organization isn't a coal or natural gas-fired power plant, this regulation does not directly affect your operations or current regulatory requirements.
What does this mean for the future of the EPA?
The court’s precedent of the major questions doctrine will put all agency regulations under a microscope of scrutiny. Any agency regulation (whether it be the EPA, DHS, DOT (Department of Transportation), FCC, etc.) that does not derive from an explicit act of Congress will most likely not receive interpretive deference from the courts.
