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West Virginia v. Environmental Protection Agency

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Supreme Court of the United States
West Virginia v. Environmental Protection Agency
Term: 2021
Important Dates
Argued: February 28, 2022
Decided: June 30, 2022
Outcome
D.C. Circuit reversed and case remanded
Vote
6-3
Majority
Chief Justice John Roberts • Clarence Thomas • Samuel Alito • Neil Gorsuch • Brett Kavanaugh • Amy Coney Barrett
Concurring
Neil Gorsuch • Samuel Alito
Dissenting
Stephen Breyer • Sonia Sotomayor • Elena Kagan

West Virginia v. Environmental Protection Agency was a U.S. Supreme Court case decided on June 30, 2022, in which the court formally invoked the major questions doctrine for the first time to limit the scope of powers granted to the Environmental Protection Agency (EPA) through the Clean Air Act. The court reversed and remanded the decision of the United States Court of Appeals for the District of Columbia Circuit, holding that Congress must provide clear direction to the EPA—rather than a broad delegation of power—in order for the agency to regulate greenhouse gas emissions.[1][2]

The court held oral argument in the case on February 28, 2022, during the court's October 2021-2022 term.

This case was consolidated with North American Coal Corporation v. Environmental Protection Agency, Westmoreland Mining Holdings v. Environmental Protection Agency, and North Dakota v. Environmental Protection Agency.

HIGHLIGHTS
  • The issue: The case concerned whether the U.S. Constitution gives Congress the authority to delegate broad regulatory power to the Environmental Protection Agency (EPA) related to greenhouse gas emissions. Click here to learn more about the case's background.
  • The questions presented: "In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements?"[3]
  • The outcome: The U.S. Supreme Court ruled 6-3 that the major questions doctrine requires Congress to provide clear direction in its delegation of authority to the EPA in order for the agency to regulate greenhouse gas emissions. It reversed the D.C. Circuit's ruling and remanded the case for further proceedings.[1]


    • The cases came on a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. To review the lower court's opinion, click here.[4]

    Why it matters: The U.S. Supreme Court formally applied the major questions doctrine for the first time to limit a broad congressional delegation of authority to the EPA. SCOTUSblog analyst Amy Howe observed that the ruling "likely will have ripple effects far beyond the EPA" that could apply "to any major policymaking effort by federal agencies."[5][6][2]

    Timeline

    The following timeline details key events in this case:

    • June 30, 2022: The U.S. Supreme Court reversed the decision from the D.C. Circuit and remanded the case for further proceedings.[1]
    • February 28, 2022: The U.S. Supreme Court heard oral argument.
    • October 29, 2021: The U.S. Supreme Court agreed to hear the case, consolidated with the cases North American Coal Corporation v. Environmental Protection Agency, Westmoreland Mining Holdings v. Environmental Protection Agency, and North Dakota v. Environmental Protection Agency.
    • April 29, 2021: The State of West Virginia, et al. appealed to the U.S. Supreme Court.
    • January 19, 2021: The United States Court of Appeals for the District of Columbia Circuit vacated the Affordable Clean Energy Rule ("ACE Rule") and remanded the case to the EPA, vacated the amendments to the implementing regulations extending the compliance timeline, denied the North American Coal Corporation and Westmoreland Mining Holdings LLC's ("Coal Petitioners") objections, and dismissed the Texas Public Policy Foundation, Competitive Enterprise Institute, and businesses that petitioned jointly with forest-services firm Robinson Enterprises, Inc.'s ("Robinson Petitioners") petition, holding that they lacked standing.[4]

    Background

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    Clean Power Plan created and replaced by Affordable Clean Energy rule

    In 2015, the Environmental Protection Agency (EPA) established the Clean Power Plan (2015) to create guidelines for greenhouse gas emission reduction from existing power plants. The plan required power plants to install more efficient devices and called for plants to move toward implementing different methods of energy creation, including natural gas and emission-free sources. The plan was not implemented.[4] In 2019, the EPA implemented the Affordable Clean Energy (ACE) Rule (2019), repealing and replacing the Clean Power Plan with a new system for emission reduction. The ACE rule advised coal plants to upgrade technologies to attempt to reduce emissions.[4]

    Groups challenge the ACE rule in federal court

    Following the ACE rule's enactment, three groups of petitioners challenged the rule's legality in the United States Court of Appeals for the District of Columbia Circuit. The first group asked the court to review the ACE rule's determination that Section 7411 of the Clean Air Act only allows emission reduction measures that can be used at the power source. The second group challenged the legality of the ACE rule's emission limits, alleging that the EPA did not make a specific endangerment finding for carbon emissions, that EPA regulations on mercury emissions forestalled the EPA from regulating greenhouse gas emissions under Section 7411, and that the EPA should have regulated carbon emissions from stationary sources under the national ambient air quality standard (NAAQS) program. The third group challenged the ACE rule's conclusion that states could not use the biomass co-firing energy production method to comply with emission reduction standards.[4][7]

    The D.C. Circuit overturns the ACE rule

    On January 19, 2021, the D.C. Circuit issued the following ruling:[4]

    “ The question in this case is whether the Environmental Protection Agency (EPA) acted lawfully in adopting the 2019 Affordable Clean Energy Rule (ACE Rule), 84 Fed. Reg. 32,520 (July 8, 2019), as a means of regulating power plants' emissions of greenhouse gases. It did not. Although the EPA has the legal authority to adopt rules regulating those emissions, the central operative terms of the ACE Rule and the repeal of its predecessor rule, the Clean Power Plan, 80 Fed. Reg. 64,662 (Oct. 23, 2015), hinged on a fundamental misconstruction of Section 7411(d) of the Clean Air Act. In addition, the ACE Rule's amendment of the regulatory framework to slow the process for reduction of emissions is arbitrary and capricious. For those reasons, the ACE Rule is vacated, and the record is remanded to the EPA for further proceedings consistent with this opinion. ...


    ... Because promulgation of the ACE Rule and its embedded repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act, we vacate the ACE Rule and remand to the Agency. We also vacate the amendments to the implementing regulations that extend the compliance timeline. Because the objections of the Coal Petitioners are without merit, we deny their petitions. And because the Robinson Petitioners lack standing, their petition is dismissed.[8]

    		”

    The D.C. Circuit's ruling vacated the ACE Rule and remanded the case back to the EPA for further proceedings. The EPA did not reinstate the Clean Power Plan.[4][9]

    Clean Air Act

    The Clean Air Act was first established in 1963.[4] The Clean Air Act provision at issue in this case, 42 U.S.C. §7411(d), was enacted in 1970 and reads as follows:[10]

    “ (d) Standards of performance for existing sources; remaining useful life of source


    (1) The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance. Regulations of the Administrator under this paragraph shall permit the State in applying a standard of performance to any particular source under a plan submitted under this paragraph to take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies.

    (2) The Administrator shall have the same authority-
    (A) to prescribe a plan for a State in cases where the State fails to submit a satisfactory plan as he would have under section 7410(c) of this title in the case of failure to submit an implementation plan, and
    (B) to enforce the provisions of such plan in cases where the State fails to enforce them as he would have under sections 7413 and 7414 of this title with respect to an implementation plan.

    In promulgating a standard of performance under a plan prescribed under this paragraph, the Administrator shall take into consideration, among other factors, remaining useful lives of the sources in the category of sources to which such standard applies.[8]

    		”

    Under section 7411, the Clean Air Act requires qualifying power plants to use the best emission reduction system possible, using existing technology and accounting for any forthcoming technological advances.[10]

    Nondelegation doctrine

    See also Nondelegation doctrine

    The nondelegation doctrine (sometimes hyphenated as non-delegation doctrine) is a principle of constitutional and administrative law that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. In other words, lawmakers cannot allow others to make laws. In the context of the federal government, the doctrine comes from an interpretation of Article I of the United States Constitution and the separation of powers principle. Under a strict application of the nondelegation doctrine, Congress would not be allowed to let the president, administrative agencies, private corporations, or courts make generally applicable rules that govern private conduct.[11][12][13]

    Questions presented

    The petitioner presented the following questions to the court:[3]

    Questions presented:
    “ In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements?[8] ”

    Oral argument

    Audio

    Audio of oral argument:[14]



    Transcript

    Transcript of oral argument:[15]

    Outcome

    The court ruled 6-3 that the major questions doctrine requires Congress to provide clear direction to the EPA in its delegation of authority in order for the agency to regulate greenhouse gas emissions. It reversed the D.C. Circuit's ruling and remanded the case for further proceedings.

    Chief Justice John Roberts delivered the opinion of the court, joined by Justices Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, and Samuel Alito. Justice Neil Gorsuch delivered a concurring opinion, joined by Justice Samuel Alito. Justice Elena Kagan dissented, joined by Justices Stephen Breyer and Sonia Sotomayor.[1]

    Opinion

    Opinion of the court

    Chief Justice John Roberts delivered the majority opinion, in which he first argued that the states had standing to challenge the EPA's ruling despite the Biden administration's voluntary assertion that it would not enforce the Clean Power Plan while it worked on issuing an updated regulation:

    “ But 'voluntary cessation does not moot a case' unless it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 719 (2007). Here the Government 'nowhere suggests that if this litigation is resolved in its favor it will not' reimpose emissions limits predicated on generation shifting; indeed, it 'vigorously defends' the legality of such an approach. Ibid. We do not dismiss a case as moot in such circumstances. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283, 288–289 (1982). The case thus remains justiciable, and we may turn to the merits.[8] ”
    —Chief Justice John Roberts, majority opinion in West Virginia v. Environmental Protection Agency


    Chief Justice John Roberts next applied the major questions doctrine, finding that nowhere in the Clean Air Act had Congress granted the EPA specific authority to regulate greenhouse gas emissions:

    “ Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible 'solution to the crisis of the day.' New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.[8] ”
    —Chief Justice John Roberts, majority opinion in West Virginia v. Environmental Protection Agency

    Concurring opinion

    Justice Neil Gorsuch delivered a concurring opinion, joined by Justice Samuel Alito, in which he emphasized what he considers to be the importance of the major questions doctrine as a tool to oversee agency actions:

    “ The major questions doctrine works in much the same way to protect the Constitution’s separation of powers. Ante, at 19. In Article I, 'the People' vested '[a]ll' federal 'legislative powers ... in Congress.' Preamble; Art. I, § 1. As Chief Justice Marshall put it, this means that 'important subjects ... must be entirely regulated by the legislature itself,' even if Congress may leave the Executive 'to act under such general provisions to fill up the details.' Wayman v. Southard, 10 Wheat. 1, 42–43 (1825). Doubtless, what qualifies as an important subject and what constitutes a detail may be debated. See, e.g., Gundy v. United States, 588 U. S. ___, ___–___ (2019) (plurality opinion) (slip op., at 4–6); id., at ___–___ (GORSUCH, J., dissenting) (slip op., at 10–12). But no less than its rules against retroactive legislation or protecting sovereign immunity, the Constitution’s rule vesting federal legislative power in Congress is 'vital to the integrity and maintenance of the system of government ordained by the Constitution.' Marshall Field & Co. v. Clark, 143 U. S. 649, 692 (1892).[8] ”

    Dissenting opinion

    Justice Elena Kagan dissented, joined by Justices Stephen Breyer and Sonia Sotomayor, arguing in part that "the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening."[1]

    Text of the opinion

    Read the full opinion here.

    Commentary about the case

    Pre-decision commentary

    Amy Howe, a reporter at SCOTUSblog, made the following observation about the potential impact of the case in an article from October 2021:

    “ The justices’ decision in the case, which is expected by summer 2022, could have an impact well beyond environmental law because it could impose new limits on Congress’ ability to delegate authority to all regulatory agencies.[16][8] ”


    Jonathan H. Adler, a law professor at Case Western Reserve University School of Law, made the following observations about the potential impact of the case in a Volokh Conspiracy post from October 2021:

    “ This case could be tremendously significant beyond the question of the EPA's regulation of greenhouse gases because [...] the questions presented encompass both the immediate question of what authority the EPA has under Section 7411 of the Clean Air Act, but also the broader question of how prescriptive Congress must be when delegating broad regulatory authority to federal agencies. This gives the Court room to refine and expand the "major questions" doctrine [...] as well as to perhaps identify some of the outer limits on delegation more generally.[17][8] ”


    Ian Millhiser, a senior correspondent at Vox, made the following observations about the potential impact of the case in an article from November 2021:

    “ Even though it’s no longer likely to be implemented, the petitioners in the West Virginia case — red states, energy companies, and owners of coal mines — are fighting to get the Court to rule that the federal Clean Air Act does not authorize Obama’s plan. More importantly, they call for new limits on the Clean Air Act that would severely restrict the Environmental Protection Agency’s ability to reduce greenhouse emissions in the future.


    But that’s only the tip of the iceberg. At least some of the parties in the West Virginia litigation claim that it is unconstitutional for the EPA to take the sort of aggressive strides against climate change that the Obama administration took in its Clean Power Plan. This theory wouldn’t just strip the EPA of much of its power to fight climate change, it could potentially disable Congress’s ability to effectively protect the environment.[18][8]

    		”


    Post-decision commentary

    See also: Major questions doctrine, Chevron deference

    SCOTUSblog analyst Amy Howe claimed that the court's decision "may hamper President Joe Biden’s plan to fight climate change and could limit the authority of federal agencies across the executive branch." She added that "Roberts’ full-throated embrace of the major-questions doctrine – a judicially created approach to statutory interpretation in challenges to agency authority – likely will have ripple effects far beyond the EPA. His reasoning applies to any major policymaking effort by federal agencies."[6]

    University of Michigan law professor Daniel Deacon told Reuters that, in his view, the decision could limit federal agencies' ability to respond to important policy issues:[2]

    “ My fear is that anything that codes as ‘controversial’ in certain circles or that is politically salient more generally will strike the court as ‘major' ... That will leave agencies with plenty of small-bore (though still important) responsibilities, but it may disable them from confronting some of the gravest problems facing the country, as we have seen now in the context of COVID-19 and the climate crisis.[8] ”


    Legal journalist Allison Frankel argued that the court's introduction of the major questions doctrine lacked meaningful parameters to guide its application, which could incentivize judges to favor the major questions doctrine over the two-step Chevron deference test when reviewing questions of agency authority:[2]

    “ Major questions challenges have the additional advantage of sidestepping the nuanced analysis required by the traditional framework for evaluating agency authority. The framework, from 1984’s Chevron v. Natural Resources Defense Council, calls for courts to defer to federal agencies to interpret the statutes they enforce. But Chevron never even comes into play if the major questions doctrine applies, since the doctrine is premised on statutory limitations on agency authority. So, at least until lower courts begin to clarify the outer edges of the new doctrine, rule challengers will probably regard it as a blunter and more easily wielded instrument than Chevron.[8] ”


    Administrative law scholar Philip Hamburger in a press release for the New Civil Liberties Alliance stated that while he approved of the majority's reasoning, he was concerned that the major questions doctrine could potentially be used to authorize, rather than limit, broad congressional delegations of authority to agencies:[19]

    “ The court reached the right outcome, but on strange reasoning. It seems to be saying: If Congress is going to violate the Constitution (by divesting massive legislative power), it must do so knowingly and clearly. As if that somehow would be a cure![8] ”

    October term 2021-2022

    See also: Supreme Court cases, October term 2021-2022

    The Supreme Court began hearing cases for the term on October 4, 2021. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[20]

    The court agreed to hear 68 cases during its 2021-2022 term.[21] Four cases were dismissed and one case was removed from the argument calendar.[22]

    The court issued decisions in 66 cases during its 2021-2022 term. Three cases were decided without argument. Between 2007 and 2021, SCOTUS released opinions in 1,128 cases, averaging 75 cases per year.


    Impact

    See also: Inflation Reduction Act of 2022

    The Inflation Reduction Act, which was signed into law on August 16, 2022, enacted several initiatives impacting taxes, health care costs, and the climate. Among these changes, the law amended the Clean Air Act to define carbon dioxide produced by burning fossil fuels as air pollutants in an effort to authorize the Environmental Protection Agency (EPA) to regulate such emissions as greenhouse gases. The bill passed the Senate with a partisan vote of 51-50. Vice President Kamala Harris (D) cast the tiebreaking vote.[23]

    The passing of the bill followed the ruling in West Virginia v. EPA, holding that the EPA had not been given explicit authority to regulate greenhouse gas emissions. By defining carbon dioxide produced by burning fossil fuels as air pollutants, the law aims to authorize the EPA to regulate such emissions as greenhouse gases. The law also grants funding to the EPA to establish programs that seek to reduce emissions and air pollutants.

    Senator Tom Carper (D) stated, “The language, we think, makes pretty clear that greenhouse gases are pollutants under the Clean Air Act,” according to The New York Times. Carper contended that the law expressly addressed the EPA’s directive to regulate air pollutants and emissions.[23]

    Some Republican lawmakers expressed concern about the language used in the bill, with Senator Ted Cruz (R) stating, “The Democrats are trying to overturn the Supreme Court’s West Virginia v. EPA victory,” according to The New York Times.[23]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 United States Supreme Court, "West Virginia v. Environmental Protection Agency," June 30, 2022
    2. ↑ 2.0 2.1 2.2 2.3 Reuters, "U.S. Supreme Court just gave federal agencies a big reason to worry," June 30, 2022
    3. ↑ 3.0 3.1 U.S. Supreme Court, "West Virginia v. Environmental Protection Agency: PETITION FOR A WRIT OF CERTIORARI," accessed October 29, 2021
    4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 U.S. Court of Appeals for the D.C. Circuit, Am. Lung Ass'n v. Envtl. Prot. Agency, decided January 19, 2021
    5. ↑ Vox, "A new Supreme Court case could gut the government’s power to fight climate change," November 3, 2021
    6. ↑ 6.0 6.1 SCOTUSblog, "Supreme Court curtails EPA’s authority to fight climate change," June 30, 2022
    7. ↑ SCOTUSblog, "Justices agree to review EPA’s authority to regulate greenhouse gases," October 29, 2021
    8. ↑ 8.00 8.01 8.02 8.03 8.04 8.05 8.06 8.07 8.08 8.09 8.10 8.11 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    9. ↑ U.S. Environmental Protection Agency, "Subject: Status of Affordable Clean Energy Rule and Clean Power Plan," February 12, 2021
    10. ↑ 10.0 10.1 Casetext, "42 U.S.C. § 7411," accessed November 2, 2021
    11. ↑ Legal Information Institute, "Nondelegation Doctrine," accessed September 5, 2017
    12. ↑ FindLaw, "Whitman v. American Trucking Assns., Inc.," February 27, 2001
    13. ↑ Justia, "Delegation and Individual Liberties," accessed September 10, 2017
    14. ↑ Supreme Court of the United States, "Oral Argument - Audio," argued February 28, 2022
    15. ↑ Supreme Court of the United States, "Oral Argument - Transcript," argued February 28, 2022
    16. ↑ SCOTUSblog, "Justices agree to review EPA’s authority to regulate greenhouse gases," October 29, 2021
    17. ↑ The Volokh Conspiracy, "Supreme Court Agrees to Hear Case Challenging EPA Authority to Regulate Greenhouse Gases (Updated)," October 29, 2021
    18. ↑ Vox, "A new Supreme Court case could gut the government’s power to fight climate change," November 3, 2021
    19. ↑ New Civil Liberties Alliance, "In NCLA Amicus Win, SCOTUS Limits EPA’s Regulatory Authority Under Clean Air Act," June 30, 2022
    20. ↑ SupremeCourt.gov, "The Supreme Court at Work: The Term and Caseload," accessed February 4, 2021
    21. ↑ Consolidated cases are counted as one case for purposes of this number.
    22. ↑ U.S. Supreme Court, "Order List: 593 U.S.," May 17, 2021
    23. ↑ 23.0 23.1 23.2 The New York Times, "Democrats Designed the Climate Law to Be a Game Changer. Here's How.," August 22, 2022
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