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 about executive actions on offshore wind) 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.