West Virginia v. EPA: It’s Dé·jà Vu All Over Again


Original appeared at thejbsgroup78.medium.com

West Virginia v. EPA: It’s Dé·jà Vu All Over Again

Joel Stronberg, Esq.
By Joel Stronberg, Esq. and 08/08/22
  • The decision in West Virginia v. EPA is as important for what it doesn’t say as for what it does.
  • Although the Supreme Court left in tack many of EPA’s regulatory powers, it limited its regulatory reach on existing stationary sources of greenhouse gases.
  • Without the need to win over “swing” justices, the conser­vat­ive wing of the US Supreme Court has little incent­ive to moder­ate its posi­tions or embrace an incre­mental approach to legal change, much less look for ways to engage with the other side or avoid reach­ing divis­ive ques­tions.
  • The decision in West Virginia heightens the importance of state and local governments in combatting climate change.

It was hardly happenstance that the Supreme Court justices waited — until they were packed and halfway out the door — to announce their decisions in cases they knew would fan the flames of the culture war that has gripped the nation since the turn of the third millennium.

In Dobbs v. Jackson Women’s Health Organization, the high court held that the Constitution does not confer a right to abortion. The decision overturned Roe v. Wade and Planned Parenthood v. Casey — making abortion a matter for state governments to wrangle with.

The conservative bench also handed down a ruling on gun rights — striking down a New York state law[i] enacted in 1911. The Sullivan Act, named for its lead author, required those wanting to carry a concealed weapon to show a special need to defend themselves. The decision confirms earlier cases respecting a hardly-curtailed Second Amendment right to bear arms.

On a question of religious expression[ii], the conservative crew opined that a high school football coach praying on the 50-yard line at the end of each game does not violate the Constitution’s establishment clause. The majority opinion, written by Justice Gorsuch, overturned an 8 to 0 decision in a 1971 case that, until now, has guided the high court’s rulings in cases involving the Constitution’s prohibitions to the government’s establishment of religion[iii].

Then there is the case of West Virginia v. EPA, which threatened to overturn the 2007 landmark decision in Massachusetts v. EPA. The Massachusetts case led to EPA’s 2009 finding that greenhouse gas emissions endangered the health and welfare of the nation and formed the foundation on which Presi-dent Obama’s Clean Power Plan (CPP) was constructed in 2015. It was to be Obama’s environmental legacy and the mechanism by which the US would meet its voluntary emission reduction targets pursuant to Article 4, paragraph 2 of the Paris Climate Agreement.

Not withstanding Trump’s attempts to deregulate the environment, his admin-istration remained obligated under Section 111(d) of the Clean Air Act to regulate greenhouse gas emissions from existing coal-fired power plants. To meet its obligation, the Trump administration proposed the Affordable Clean Energy (ACE) rule in 2018.

The plaintiffs in West Virginia and the several consolidated cases considered alongside it sought to have the Supreme Court strike down the CPP despite its never coming into force.

West Virginia v EPA: A case about nothing?

The Biden administration tried to kick the legal can down the road by arguing the Supreme Court should refrain from making any decision in the case until it issued a new rule. The Biden administration claimed that neither the CPP nor the Trump administration’s much watered -own Affordable Clean Energy (ACE) rule was any longer on the regulatory table.

Unusually, the high court would not wait. Why unusual? Courts generally aren’t in the business of giving advisory opinions. Ordinarily, before a plaintiff is allowed to pursue a remedy in federal court, they must first establish they have the right, i.e., standing, to seek the court’s assistance.

Standing is granted based on affirmative answers to three questions:

  • Has the plaintiff suffered a concrete harm?
  • Is the injury the direct result of a defendant’s action?
  • Does the court have the power to redress the harm in some substantive manner?

Meeting two out of three of the requirements is not enough.

Ian Millhiser sums up the situation neatly —

West Virginia v. EPA is a case about an environmental regulation that no longer exists, that never took effect, and that would not have accomplished very much if it had taken effect. It is a case about nothing.

The decision in West Virginia is as important to the climate debate for what it doesn’t say as for what it does. So, I’ll start with the good news  such as it is.

The West Virginia case does not:

  • Reverse the Supreme Court’s ruling in Massachusetts v EPA;
  • Stop the federal government from setting fuel efficiency standards for cars and light trucks (CAFE);
  • Curtail the broad powers of state and local governments to set stringent environmental standards are similarly unaffected;
  • Restrict EPA from regulating harmful emissions other than carbon, e.g., soot, mercury, and nitrous oxides
  • Impact EPA’s authority to regulate hydrofluorocarbons (HFC) — category of potent greenhouse gases;
  • Put the CPP back in place; or,
  • Restrict EPA’s regulation of carbon pollution from new power plants under Section 111(b) of the Clean Air Act.

The bad news of the West Virginia case is its blunting EPA’s regulatory reach pertaining to existing coal-fired power plants. The high court held:

Congress did not grant the Environmental Protection Agency in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the agency took in the Clean Power Plan.

Under the CPP, states were given emission reduction targets and significant latitude for meeting them. For example, emissions from a coal plant could be offset by building a new clean energy project.

There’s still nothing to prevent a state from setting emission targets more aggressive than federal standards. Nevertheless — the constraints placed on EPA’s authorities by the West Virginia decision pose a significant obstacle to Biden’s goal of 100 percent clean electricity by 2035.

Coal currently supplies around 21 percent of US electricity and is responsible for half of all carbon dioxide emissions from power production. Even without a CPP-like regulation, the nation’s fleet of coal-fired power plants will fade from existence because of economics. In the meantime, the US’s 240 coal power plants will continue spewing harmful emissions.

Time is not on the side of coal-fired generators, but neither is it on the side of the global environment. Notwithstanding all the NDC pledges made under the Paris Agreement getting to net-zero while 2,220 coal-fired plants remain online. (See Graph)

The impact of the West Virginia decision on federal rulemaking

How the majority arrived at its conclusion in West Virginia is as troubling as the limitations it placed on EPA’s regulatory reach. Chief Justice Roberts referred to the Major Questions Doctrine (MQD) in his majority opinion.

It is not always easy to tell what the Doctrine is or when it applies. In general, it pertains to cases of great political or economic significance.

Chief Justice Roberts wrote in the majority opinion that regulations like the CPP could force a nationwide transition away from coal. He further ex-plains that in ‘extraordinary cases,’ like West Virginia, an agency must have clearly expressed authority in the language of the law.

Theoretically, MQD regards the separation of the three branches of govern-ment. In practice, the Doctrine is about the latitude subject matter agencies have in interpreting what it was that Congress had in mind when it passed the law.

Precise legislative language is not always possible, nor is it always expedient. The further in the weeds lawmakers get, the greater the opportunities for tribal conflict. Moreover, the expertise needed to detail legislative language doesn’t exist on Capitol Hill.

The devil is always in the details. These days, there are more determined devils unwilling to negotiate the finer points of legislation –in good faith. Too often, the result is deliberate and persistent gridlock.

Consider that Senate Minority Leader Mitch McConnell (R-KY) has publicly acknowledged that his congressional agenda is just saying “No to President Biden. The Kentuckian has even clashed with members of his own caucus over having any policy agenda — let alone talking about it in public.

MQD is also about how much deference courts are willing to give to executive branch agencies in implementing legislative mandates. Most conservative jurists and organizations like the Federalist Society support high boundary walls between the branches. It means that the one branch, i.e., the courts, should consider what another branch, i.e., the executive, has to say about a matter.

1984 Supreme Court case involving a dispute over the Environmental Protection Agency’s interpretation of a provision of the Clean Air Act Amendments of 1977 established the Chevron deference, which holds:

When a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency.

Ironically the patron of modern-day conservative jurists, Justice Antonin Scalia, was a champion of the deference.

The West Virginia decision whittles heavily away at the deference doctrine by requiring greater specificity in legislative language in instances of political and economic significance  however those terms come to be defined by the 6 to 3 supermajority now sitting on the high court bench.

The West Virginia decision could have been more debilitating to federal regulatory agencies than it now appears to be. In his concurring opinion, Justice Gorsuch raises the specter of yet another canon — the nondelegation doctrine holds that Congress cannot hand-off its legislative duties to federal agencies. To paraphrase Jonathan Adler,

Congress cannot legislate power now for an agency to legislate later. Jonathan Adler

Although the Court hasn’t struck down a statute based on the canon since 1935[iv], Justices AlitoThomas, and Kavanaugh have expressed similar sentiments. Standing between the four justices and the resurrection of the nondelegation are Chief Justice Roberts and Justice Coney Barrett — both of whom favor Justice Scalia’s position on such matters.

Where do things go from here?

Looking across recent Supreme Court decisions, it’s hard not to think that at least four of the six justices have a political agenda. Justice Thomas raised in his concurring opinion in Dobbs that the high court should next revisit well-established rights under the Constitution for the use of contraceptives and who may marry. The language Thomas uses strongly suggests a decision has already been made:

Because any substantive due process decision is ‘demonstrably erroneous,’ […] we

have a duty to ‘correct the error’ established in those precedents.

Justice Alito asks us to believe that nothing in Dobbs should cast doubt on precedents outside the abortion circle. Striking down New York’s Sullivan Act and blurring the lines between church and state suggest otherwise.

While the decision in West Virginia preserves much of EPA’s regulatory authorities and doesn’t limit the powers of state and local governments, the Court’s reliance on the Major Question Doctrine (MQTD) and its whittling away on the Chevron canon has changed the rules of the game and not only on climate matters.

Scholars at the Brenner Center for Justice are predicting that “without the need to win over ‘swing’ justices, the conser­vat­ive wing of the US Supreme Court has little incent­ive to moder­ate its posi­tions or embrace an incre­mental approach to legal change, much less look for ways to engage with the other side or avoid reach­ing divis­ive ques­tions.”

For decades, the cycle of on-again-off-again energy and environmental policies has remained unbroken. A president issues executive orders, and congressional majorities pass legislation. A successor from the opposing party becomes president, and his congressional majorities look to reverse what came before. Wash, rinse, and repeat.

For decades, the federal judiciary has provided some protection from the precipitous politics of the legislative and executive branches. Truth be told, courtrooms have never been very good venues to debate and decide critical climate policy. There are reasons why they’re called courts of last resort.

The high court’s unwinding of the administrative state poses a serious threat to the nation’s environment. Even with a smooth transfer of power to state and local governments, it would take years to accomplish. Time the climate crisis can’t afford.

The West Virginia decision will rightly cause climate activists to focus attention at the state and local levels, particularly if the Democrats can manage to pass Senator Manchin’s (D-WV) Inflation Reduction Act (IRA).

The IRA is the new and reduced version of the Back Better Act. It provides $369 billion in Energy Security and Climate Change programs over the next ten years.

A summary of the bill by Senate Democrats includes deficit reduction funds to fight inflation, investments in domestic energy production and manufacturing, and lowering emissions by roughly 40 percent by 2030. The bill will allow Medicare to negotiate prescription drug prices and extend the expanded Affordable Care Act program through 2025.

I would commend the coal-state Senator for coming to the rescue of federal climate-related programs if it weren’t for saving them from a problem of his making. Nevertheless, 369 billion bucks are nothing to sneeze at, and a pat on his back is probably a wise investment of effort — as odious as it might be for some.

Putin’s war on Ukraine is showing the world what an addiction to fossil fuels gets you — especially if those resources are owned by someone else. As tragic as the war is, it will likely prove that developed economies can be powered by solar and wind resources. What better way to defeat your dealer’s power over you than by “going” clean?

The shift from the federal to the state and local levels may have a silver lining — in the way that necessity is the mother of invention. Communities more proximate to the consequences of the climate crisis will invariably have much they can agree on — that they can work together to adapt and make their homes, business, places of worship, schools, and farms more resilient to a heating planet.

Such camaraderie is taking place on a global level. Polls show that consumers in the US view paying more for gasoline as a way to show solidarity with the Ukrainian people. Having a purpose beyond yourself can reward both the giver and receiver.

Why, I wonder we as a group don’t see saving the planet from the consequences of climate change in the same light?

EPA is expected to release new Section 111 rules for new and existing sources of greenhouse gases within the next few months. Whatever those rules may say, they’ll be challenged in court.

The West Virginia case just decided strikes down the CPP that was issued in final form in 2015. Seven years on, and the Supreme Court has finally settled the issue. Or has it? There is still no rule in place.

EPA is expected to release new Section 111 rules for new and existing sources of greenhouse gases within the next few months. Whatever those rules say, I’m confident they will be challenged multiple times in federal court. De-cisions in those cases are unlikely to be made before the end of President Biden’s first term.

After decades as a climate and clean energy activist, I can’t help but feel that we’ve been here before. Wash, rinse, repeat.


[i]New York Rifle and Pistol Association v. Bruen. The US Supreme Court struck down the Sullivan Act, which was passed in 1911.

[ii] See also Kennedy v. Bremerton School District

[iii] See also Carson v. Makin

[iv] See Panama Refining Co. v. Ryan, and A.L.A. Schechter Poultry Corp. v. United States