US Supreme Court Restricts EPA’s Use of Clean Air Act Regulations to Facilitate Decarbonization of Electricity Markets | Sullivan and Worcester


[co-author: Edward Mahaffey]

On June 30, 2022, the United States Supreme Court struck down the Environmental Protection Agency’s (EPA) Clean Power Plan (“CPP”), limiting the agency’s power to fight climate change, in the affair West Virginia vs. EPA. The ruling will impede the EPA’s ability to significantly limit greenhouse gas (“GHG”) emissions from the electricity sector, and is likely to impede the United States’ goal of decarbonizing energy markets. electricity by 2035.


Section 111 of the Clean Air Act (42 USC § 7411) directs the EPA to regulate stationary sources of air pollution that can reasonably be expected to endanger the health or welfare of the public .[1] The law defines a “stationary source” as “any building, structure, installation or facility that emits or may emit an air pollutant”.[2] While states submit specific plans for performance standards under Section 111(d), the EPA determines both the level of pollution reduction to be achieved and, via Section 111(a)(1 ), the “best emission reduction system” to achieve this. .[3]

Under the Obama administration in 2015, the EPA enacted the Clean Power Plan rule, regulating carbon dioxide emissions from existing coal and natural gas-fired power plants. While the rule’s “best emission reduction scheme” included heat rate improvements at coal-fired power plants, the agency noted that these measures alone “would only lead to small reductions in emissions for the source category”.[4] Therefore, the EPA has included in its best emission reduction scheme the “generation shift” from coal-fired power plants to natural gas power plants, and from coal-fired and natural gas power plants to cleaner sources of electricity. such as wind and solar energy.[5]

Lawsuits challenging the rule were filed by states and industry, and on February 9, 2016, the Supreme Court suspended the clean energy plan pending the appeal process.[6] On July 8, 2019, while the clean energy plan was still pending in the United States Court of Appeals for the District of Columbia, the EPA repealed the plan, finding that the agency had acted “at the beyond its statutory authority” because the concept of a “better emission reduction system” under Section 111 should be understood to apply only to on-site actions taken at the level of an individual installation.[7] The Trump administration’s EPA replaced the Clean Power Plan with a much more limited carbon dioxide emissions reduction rule, the Affordable Clean Energy Rule.[8]

The Affordable Clean Energy Rule, in turn, was struck down by the DC Circuit on January 19, 2021, which rejected what it called “the faulty legal premise that the legislative text specifically excluded consideration of measures other than those that apply to the individual source.”[9] Nonetheless, the EPA, now under the control of the Biden administration, has signaled that it has no plans to implement the Clean Power Plan. Although the rule never took effect, the goals of the Clean Power Plan had already been achieved; the utilities covered had achieved a 32% decrease in carbon emissions from 2005 levels a decade earlier than expected.[10] Instead, the Biden administration announced that it plans to replace the canceled DC Circuit rule with a new rule aimed at further reducing greenhouse gas emissions from existing power plants.

Basis of decision

The Court first dismissed the justiciability arguments of the federal defendants, which were based on the fact that there was no rule in force and therefore no controversy to be decided. The Court acknowledged the “representation that the EPA does not intend to enforce the Clean Energy Plan until it enacts a new rule in Section 111(d),” but noted that the The agency didn’t deny that it still intends to “reimpose emissions limits based on shifting production,” even though it’s not exactly the same regulation.[11]

The Court then turned to the merits. He invoked what he called the “major issues doctrine”[12] this applies to “‘extraordinary cases…in which ‘the history and extent of the authority which [the agency] asserted,” and the “economic and political significance” of that assertion, provide “reason to hesitate before concluding that Congress” intended to confer such authority. »[13] In the Court’s view, the doctrine applied to this case because the EPA “claimed that Section 111(d) authorized it to fundamentally restructure the US energy market.” The EPA therefore “claims[ed] discover in a longstanding law an unsuspected power” representing a “transformative expansion in [its] regulator”, even though Section 111(d) “was designed to fill in the gaps and was rarely used in previous decades”.[14]

The Court rooted its analysis of the main issues doctrine in “the principles of the separation of powers and a practical understanding of legislative intent”. In “extraordinary cases” in which the doctrine applies, “something more than just a plausible textual basis for agency action is required. Rather, the agency must indicate “clear congressional authorization” for the power it claims”.[15]

The Court found no such “clear congressional authorization”. He pointed to the EPA’s supposed lack of relevant expertise regarding certain electricity-related issues.[16] and asserted that “the Clean Power Plan essentially adopted a cap and trade system, or a set of state cap and trade systems, for carbon…Congress, however, has consistently rejected the proposals seeking to amend the Clean Air Act to create such a program.”[17]

Wider implications

The West Virginia vs. EPA decision has several potentially far-reaching implications. First, it limits the EPA’s authority to effectively address climate change. The dissenting justices accused the majority of stripping “the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.'”[18] The EPA has lost a key tool to accelerate the transition away from fossil fuels, even as the effects of climate change become clearer and intensify. Regulation like the Trump administration’s Affordable Clean Energy Rule is insufficient to address the scale of the problem; The EPA, even when it promulgated this rule, acknowledged that its projected emission reductions and other effects “are modest and do not significantly deviate from baseline expectations.”[19]

On the other hand, the ruling did not directly limit the EPA’s power to regulate greenhouse gases more broadly. The Court itself noted that the Section 111 New Source Performance Standards program is only one of three major programs regulating air pollution from stationary sources under the Clean Air Act. ; the other two are the National Ambient Air Quality Standards program and the Hazardous Air Pollutants program.[20] However, these latter programs have their own limitations. Their use in an effort to combat climate change would likely be the target of further litigation, including an assertion of the major issues doctrine. The West Virginia The decision does not, in theory, prevent Congress from more explicitly delegating authority to the EPA to enact regulations on generational change, though that step brings little comfort to the Biden administration. or environmentalists, given the likelihood of such a measure passing the current Congress as long as the filibuster rules remain in effect.

The West Virginia may also limit the future scope of agency decision-making. The concept of the “major issues doctrine” is not new, but it has never been invoked by name in a Supreme Court majority opinion before; the West Virginia dissenters viewed previous Supreme Court cases cited by the majority as examples of “normal statutory interpretation”.[21] The exact contours of the doctrine are therefore unclear: how “extraordinary” must a case be before the doctrine is applied, and what is sufficient evidence of “clear congressional authorization”? Critics of the ruling and major issues doctrine view the doctrine as a dangerously open tool to undermine the authority of regulators to implement laws passed by Congress. The dissenting justices, for example, say one of the doctrine’s “broader purposes” is to prevent “agencies from doing important work, even if it’s what Congress has ordered.”[22]

However, the decision did not go as far as to overturn administrative law jurisprudence. The Court did not reverse, or even directly mention, Chevron deference, the principle of judicial deference to agencies’ interpretations of the laws they administer; In place, Chevron deference was implicitly eclipsed by the major issues doctrine and would therefore presumably still apply where a body does not make an “extraordinary” claim to authority.

The full extent of West Virginia’s the implications nevertheless remain uncertain; it depends not only on the EPA’s future attempts to regulate greenhouse gases, but also on how the lower courts interpret the case and how the Supreme Court itself interprets the major issues doctrine in future business. At the very least, the ruling will force the EPA to make meaningful changes to its approach in seeking to reduce GHG emissions, and will serve as a key precedent debated in future cases regarding the scope of the federal agency’s authority. .

[1] 42 USC § 7411(b).
[2] 42 USC § 7411(a)(3).
[3] 42 USC § 7411(a)(1) and 7411(d).
[4] 80 Fed. Reg. 64727.
[5] 80 Fed. Reg. 64728-29.
[6] West Virginia v. EPA, 577 US 1126 (2016).
[7] 84 Fed. Reg. 32523-24.
[8] Identifier. at 32532.
[9] A m. Lung Ass’n c. EPA, 985 F.3d 914 to 995.
[11] West Virginia v. EPA, op. at 15-16 (30 June 2022).
[12] Identifier. At 11 o’clock.
[13] Identifier. at 17, citing FDA v. Brown & Williamson Tobacco Corp., 529 US 120, 159-60 (2000).
[14] Identifier. at 20, citing Utility Air Regulatory Group v. EPA, 573 US 304, 324 (2014).
[15] Identifier. at 19, citing Utility Air at 324.
[16] Identifier. At 25 years.
[17] Identifier. at 27 years old.
[18] West Virginia at 1 (Kagan, J., dissenting), citing Massachusetts v. EPA, 549 US 497, 505 (2007).
[19] 84 Fed. Reg. at 32561.
[20] West Virginia at 3-4.
[21]; West Virginia at 13 and 15 (Kagan, J., dissenting).
[22] West Virginia at pp. 28 and 29 (Kagan, J., dissenting).


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