Any (Major) Questions? Environmental Law at the Supreme Court

Yes, the Supreme Court’s recent deci­sion in West Vir­ginia v. EPA was a big deal. But how big a deal was it real­ly?

The hold­ing of the case is sim­ple. The Envi­ron­men­tal Pro­tec­tion Agency (EPA) had set lim­its on green­house gas emis­sions from pow­er plants based on what could be achieved through gen­er­a­tion shift­ing” — the long­stand­ing prac­tice com­pa­nies use to com­ply with emis­sions stan­dards that involves buy­ing cred­its from renew­able sources or shift­ing gen­er­a­tion from coal to gas, or gas to renew­ables. The Court held that set­ting lim­its like this was ille­gal. To get there, the Court first framed EPA’s rule as a deci­sion about how much coal-based gen­er­a­tion there should be over the com­ing decades.” The Court then held that this sort of deci­sion is such a major ques­tion” that it requires a clear state­ment from Con­gress grant­i­ng EPA the author­i­ty to decide the ques­tion. And the Court found the Clean Air Act had not clear­ly giv­en EPA that authority. 

But what does this real­ly mean for EPA’s cli­mate poli­cies and reg­u­la­to­ry author­i­ty? In the ulti­mate deci­sion, the Court did not tell EPA how it must inter­pret the Clean Air Act — beyond telling EPA it could not set the lim­its based on gen­er­a­tion shift­ing. In that sense, this was the best win the agency could hope for. The agency had not final­ized any new rule to moot out the case, and the truth is that EPA had lit­tle hope of con­vinc­ing the Supreme Court that it was autho­rized to use gen­er­a­tion shift­ing” to set the stan­dards under a new rule. 

Instead, EPA has pri­or­i­tized oth­er rules: focus­ing on methane emis­sions and green­house gas emis­sions from cars. And there is so much to do on oth­er fronts. There is off­shore wind to build (see this recent White House fact­sheet) and there are oth­er rules that EPA is work­ing on and can con­tin­ue to work on, some list­ed in a post by Earth­jus­tice and Ever­green Action. States are push­ing clean ener­gy for­ward, as described in a U.S. Cli­mate Alliance fact­sheet. There are numer­ous grass­roots and com­mu­ni­ty-based ini­tia­tives to push for­ward too, some list­ed in a recent Green­lin­ing Insti­tute report.

To be sure, the Court adopt­ed the major ques­tions” doc­trine to out­law gen­er­a­tion shift­ing and it can use the doc­trine in the future to over­rule any agency action it can plau­si­bly define as a ques­tion of vast eco­nom­ic and polit­i­cal sig­nif­i­cance.” But that doc­trine is not actu­al­ly that new; it has been per­co­lat­ing for years. 

The Cen­ter recent­ly held a con­ver­sa­tion with the state lawyers who lit­i­gat­ed this case. West Virginia’s Solic­i­tor Gen­er­al explained that Con­gress, not EPA, should decide ques­tions that will have a sig­nif­i­cant eco­nom­ic impact on states like hers. States on the oth­er side of the case argued coal-based gen­er­a­tion declined across the board even with­out an EPA reg­u­la­tion (see recent charts on US fos­sil fuel consumption com­piled by the U.S. Ener­gy Infor­ma­tion Admin­is­tra­tion for exam­ple). And that cli­mate change is hav­ing its own sig­nif­i­cant impact on states. Con­gress has already decid­ed that pol­lu­tion that threat­ens the health and wel­fare of peo­ple should be reg­u­lat­ed. There are sure to be more agency rules com­ing down the line and states will con­tin­ue to duke it out.