West Virginia v. EPA

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West Virginia v. Environmental Protection Agency
Supreme Court of the United States
Argued February 28, 2022
Full case nameWest Virginia, et al. v. Environmental Protection Agency, et al.
The North American Coal Corporation v. Environmental Protection Agency, et al.
Westmoreland Mining Holdings LLC v. Environmental Protection Agency, et al.
North Dakota v. Environmental Protection Agency, et al.
Docket nos.20-1530
20-1531
20-1778
20-1780
Questions presented
Petition in 20-1530:
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?
Petition in 20-1531:
Whether 42 U.S.C. § 7411(d), which authorizes the EPA to impose standards "for any existing source" based on limits "achievable through the application of the best system of emission reduction" that has been "adequately demonstrated," grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.
Petition in 20-1778:
Whether 42 U.S.C. § 7411(d) clearly authorizes EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation’s energy system.
Petition in 20-1780:
Can EPA promulgate regulations for existing stationary sources that require States to apply binding nationwide "performance standards" at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive States of all implementation and decision making power in creating their Section 111(d) plans?
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Brett Kavanaugh · Amy Coney Barrett
Laws applied
Clean Air Act

West Virginia v. Environmental Protection Agency (Docket 20–1530) is a pending United States Supreme Court case related to the Clean Air Act and the ability of the Environmental Protection Agency (EPA) to regulate carbon dioxide emissions related to climate change. The case centers on language of 42 U.S.C. § 7411(d), dealing with the EPA's authority to regulate emissions from existing power plants, which when amended and signed into law in 1990 mistakenly included contradictory language from both the House and Senate's version of the bill that never was reconciled, leaving the EPA to make its interpretation of this section.

The suit originates originally from a 2015 Obama administration EPA rule, the Clean Power Plan, based on a statutory interpretation of section §7411(d) towards meeting the Paris Agreement in carbon dioxide emissions reductions. The Clean Power Plan was challenged by several states and coal industry companies, and stayed by order of the Supreme Court. With the Trump administration, the EPA repealed the Clean Power Plan in favor of the less-aggressive Affordable Clean Power rule in 2019 based on a different interpretation of §7411(d), and the case against the Clean Power Plan rendered moot. Several other states and health and environmental groups challenged this new rule, and the District of Columbia Circuit Court ruled in January 2021 that the Affordable Clean Power rule was arbitrary and capricious and misinterpreted §7411(d), vacating this new rule.

Several of the states that first challenged the Clean Power Plan as well as coal industry-related companies challenged the D.C. Circuit's ruling on their analysis of the §7411(d) and the EPA's authority granted by it, concerned that the Circuit's ruling would give the EPA far broader powers on emissions regulation. West Virginia v. EPA represents a consolidation of four petitions that the Supreme Court certified to review the D.C. Circuit's decision.

Background[]

Clean Air Act[]

Main article: Clean Air Act (United States)

As part of the amended Clean Air Act, under 42 U.S.C. § 7411 (or Section 111 in the proposed bill), Congress granted the Environmental Protection Agency (EPA) authority to identify the "best system of emission reduction" from power generating plants or other large stationary sources, and work with states to complete implementation plans to incorporate those systems. This authority was split between two regulations, one covering emissions controls for new plants, outlined at 42 U.S.C. § 7411(b), and another controlling emissions at existing plants, at 42 U.S.C. § 7411(d). Within the scope of §7411(d), while the EPA itself cannot set taxes or fines on plants that fail to meet emission standards, it can work with states in their implementation plans to force generating plants to install emissions control technology or to participate in emissions trading programs, or allow states to implement their own taxes on violating plants.[1] Compared to the EPA's use of §7411(b) in overseeing new plants, the EPA had rarely evoked §7411(d) in any of its rule-making, and thus had not had come as much legal scrutiny compared to other parts of the Clean Air Act.[1]

Prior EPA litigation[]

Further information: United States administrative law and United States environmental law

One key piece of litigation related to the Clean Air Act was the 2007 Supreme Court case Massachusetts v. EPA, which in a 5–4 decision, had found that the EPA was mandated by Congress to regulate greenhouse gas emissions and can be sued for failing to enact rules to this end under the Clean Air Act.[2] Massachusetts v. EPA was considered one of the most significant cases in environmental litigation, as it allowed for a range of further lawsuits aimed to force emission-producing entities to limit their emissions.[3]

Another relevant piece of litigation was the 2015 Supreme Court case Michigan v. EPA, which in a 5–4 decision held that the EPA must consider costs and that it interpreted the Clean Air Act unreasonably when it determined that it did not need to consider costs when it issued a "finding" that it was "necessary and appropriate" to regulate fossil fuel power plants.[4] Michigan v. EPA was considered a controversial case in environmental litigation as it was criticized for minimizing health impacts and signalling a retreat of the Chevron deference, in which the interpretation of congressional legislation made by executive agencies is given deference in judicial court established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., in administrative law.[5][6]

Procedural history[]

Clean Power Plan[]

Main article: Clean Power Plan

The Clean Power Plan (CPP) was an Obama administration rule first proposed by the United States Environmental Protection Agency (EPA) in June 2014. The rules set by the EPA were aimed to tackle climate change by requiring reductions of carbon dioxide emissions from electricity generation by 32% of recorded 2005 levels by 2030, with the implementation to be set by the states, under the authority granted by the Clean Air Act, §7411(d). States would have been required to submit implementation plans by 2018 with enforcement to start by 2022.[7] States could require existing plants to implement efficiency improvements, emissions controls, or incorporate renewable energy generation; under these rules, existing plants adding these elements could then be subject to a New Source Review by the EPA under §7411(b), thus assuring older plants then were brought up to standards expected of new power plants.[8] This was part of the United States' commitment towards the Paris Agreement, using amendments introduced in 1990 to the Clean Air Act that identified carbon dioxide as a pollutant.[9]

Opponents of the CPP, which included 28 states and hundreds of companies, challenged the EPA's authority in its rulemaking of the CPP, filing suit in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) after the rules were published in the Federal Register in August 2015. Their suit challenged the CPP primarily on three factors. The first related to an oversight during the reconciliation of the Clean Air Act amendment in 1990 that resulted in the House and Senate versions of §7411(d) to never be reconciled, and both versions were codified into the signed law. The House version had stated that because other parts of he Clean Air Act had covered regulation of carbon dioxide, the EPA could not use §7411(d) to cover carbon dioxide emissions from existing plants, while the Senate version allowed for §7411(d) to overlap carbon dioxide emissions coverage.[9] The EPA inferred that they had judicial deference to interpret the law, following the Supreme Court decision in King v. Burwell in 2015, and used the Senate's language to develop the CPP, while opponents believed that the House version was the intended language consistent with other parts of the law.[9]

A second factor raised by opponents of the CPP was that the EPA's rule reached beyond their normal authority by given states authority to regulate power plans across the board rather than at an individual plant level. Opponents believed that while having the EPA or states could have plants take actions like implementing emissions controls as those were within bounds of the plant's control or "within the fenceline", the rules related to efficiency improvements and renewables were considered to be "outside the fenceline" and beyond the scope of the EPA's authority.[10] The third factor was related to Tenth Amendment arguments that the EPA was inappropriately delegating federal authority to the states.[10]

The D.C. Circuit agreed to hear the case in January 2016, though they did not grant a temporary injunction to stay enforcement of the CPP.[11][12] In February 2016, from request by the states and other opponents of the CPP, the Supreme Court ordered a stay in the implementation of the CPP. While the order was unsigned, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan stated they would have denied the request.[7] The D.C. Circuit held an en banc hearing in September 2016.[11]

Following the 2016 presidential election and the installation of the Trump administration at the start of 2017, the EPA effectively stated its intent to repeal the Clean Power Plan by March 2017 and to replace it with a new rule that was intended to keep its authority "within the fenceline", and asked the D.C. District to put the case in abeyance.[13] The D.C. District court granted the abeyance request in April and granted continued extensions through the year. The EPA formally issued its initially ruling to repeal the CPP in October 2017, and continued to request the D.C. Circuit to hold the case in abeyance until the rulemaking was finalized. Proponents of the CPP urged the District court to press ahead with ruling from the September 2016, since any delay would allow the EPA to avoid its duty to uphold the Clean Air Act.[14] While the D.C. Circuit did continue to grant additional periods of abeyance through June 2018, the court stated that month that it would no longer grant any further requests to delay the case, requiring the EPA to issue its final rule repealing the CPP and introducing a replacement rule, or to allow the court to continue its review.[15]

Affordable Clean Energy rule[]

With the D.C. Circuit court refusal to grant further abeyance delays, the EPA issued a new proposed set of emissions regulations, the Affordable Clean Energy (ACE) rule, in August 2018. These repealed the CPP, with the EPA arguing these were developed on a misplaced use of statutory interpretation of §7411(d).[12] The ACE rules were developed based the EPA's responsibility established in Massachusetts v. EPA, but only setting minimal safeguards and requirements for such reductions, targeting only a reduction of between 0.7% and 1.5% of carbon dioxide emissions from 2005 levels by 2030, compared to the 32% set by the CPP. Further, ACE kept the EPA's regulations to only steps "within the fenceline" of a power plant through emissions controls and lacked any allowance towards efficiency improvements or renewable sources. While power plants that implemented emissions controls would still be subject to a New Sources Review, the ACE rule also aimed to weaken the requirements of this review to make it less rigorous and more likely for older plants to pass without having to upgrade their facilities.[16][8] By the EPA's own analysis, this rule was estimated to increase particulate pollution compared to what was proposed under CPP, leading to 1,500 and 3,600 more premature deaths per year by 2030 and up to 15,000 more new cases of upper respiratory problems, among other human health impacts. The EPA argued that these initial rules were based on a limited interpretation of §7411(d), and that other aspects of the Clean Air Act can be used to address other pollutants to reduce these numbers.[17] With the release of the ACE rule and intent to repeal to the CPP, the D.C. Circuit dismissed the case over the CPP as moot, which subsequently ended the stay on the CPP issued by the Supreme Court.[18]

The new rules were seen as a boon to the states and companies that had opposed the CPP, particularly by President Donald Trump who saw it as a means to support the failing coal industry, but several other states and public health groups criticized the new rules, putting profits of the fossil fuel sector over public health.[17] Opponents also argued that the 32% reduction target in the CPP had already been met by the time the new ACE was introduced, so the ACE represented a reversal of those gains in reducing emissions.[12] After the final rule was published in June 2019,[19] the American Lung Association and the American Public Health Association filed suit in the D.C. District court to challenge the rule in July 2019. The plaintiffs were joined by over 170 other groups, including twenty three states, several cities, and other public health groups over time. The suit argued that through the ACE rule, the EPA was failing to meet its duty to reduce emissions and improve public health under the Clean Air Act, as well as preventing states from using other long-standing measures such as emissions trading as part of their implementation plans. Oral hearings were heard in October 2020.[12]

The D.C. Circuit ruled 2–1 on January 19, 2021, by happenstance the day before the inauguration of Joe Biden as the next U.S. President, in favor of the plaintiffs, vacating the ACE and its repeal of the CPP. The majority opinion ruled that the EPA's ACE rulemaking was made in a arbitrary and capricious manner intended "to slow the process for reduction of emissions", and that its implementation "hinged on a fundamental misconstruction" of the Clean Air Act's §7411(d).[20][18] Because the prior case against the CPP had been rendered moot and the stay against the CPP dismissed, this decision effectively brought the CPP into enforcement, if the EPA chose to continue with it, or to develop a new rule as remanded by the D.C. District court.[18] However, by mid-2021, the Biden administration suggested it was likely seeking an alternate plan than the CPP for carbon dioxide emissions.[21]

Supreme Court[]

Nineteen other states, led by West Virginia, and power companies challenged the D.C. Circuit's ruling, asserting that the decision gives the EPA too much power in regulating emissions. Four separate petitions (including two from coal corporations and one from North Dakota) were filed, asking the Court to review not only the D.C. Circuit's decision but the interpretation of what powers the EPA has been given by Congress through the Clean Air Act to apply to existing plants under §7411(d). In the case of West Virginia's petition, there was concern that with the interpretation of §7411(d) made by the D.C. Circuit court, the EPA "can set standards on a regional or even national level, forcing dramatic changes in how and where electricity is produced, as well as transforming any other sector of the economy where stationary sources emit greenhouse gases."[22] In line with the findings from Michigan v. EPA, the petitioning parties expressed concern that under this interpretation of §7411(d) "will impose costs we can never recoup because E.P.A., the state, and others will be forced to sink even more years and resources into an enterprise that is — at best — legally uncertain. The court should intervene now."[23]

The Biden administration urged the Supreme Court not to intervene, allowing the EPA to issue its new rule "taking into account all relevant considerations, including changes to the electricity sector that have occurred during the last several years", and allow time for it to be reviewed, rather than make judgment on a speculative EPA rule.[22][23] The Supreme Court certified the four petitions on October 29, 2021, consolidating the cases under West Virginia v. EPA.

Oral arguments were heard on February 28, 2022. Besides other factors raised, the Court considered if aspects of the case fell within the major question doctrine, which requires the judiciary to defer to Congress rather than executive agencies on matters with significant impacts and outcomes if Congress did not explicitly grant that power to the agency.[24] The Court's decision is expected in 2022.[25][23]

Impact[]

Some legal experts have stated that a ruling in West Virginia v. EPA that limits the EPA's power would have a significant impact on the agency's future ability to regulate emissions. Robert Percival, the director of the Environmental Law Program at the University of Maryland, said "This is likely to result in one of the most significant environmental rulings the court has ever reached."[26] Further, because the Supreme Court did not wait until the EPA issued new rules, others felt this signaled that the Court was willing to review Congressional authorization and consider if such authorizations violated the nondelegation doctrine of separation of powers, which would further hamper the EPA's capabilities to regulate emissions.[26] Some legal analysts also believe that there need for the Supreme Court's involvement to resolve long-standing conflicts in §7411(d) and other parts of the Clean Air Act.[27]

Due to the Supreme Court granting the case for review, the EPA has indicated it will likely wait until the Court's decision has been issued before proceeding with drafting any new rules to replace the CPP or ACE.[26]

References[]

  1. ^ a b Plumer, Brad (November 15, 2013). "Could the EPA push a carbon tax on its own? Maybe — here's how". The Washington Post. Retrieved October 30, 2021.
  2. ^ Greenhouse, Linda (April 3, 2007). "Justices Say E.P.A. Has Power to Act on Harmful Gases". The New York Times. Retrieved October 30, 2021.
  3. ^ Mineo, Liz (April 20, 2020). "How and why the Supreme Court made climate-change history". Harvard Gazette. Retrieved October 30, 2021.
  4. ^ Association of Washington Business, U.S. Supreme Court rules on EPA power regs, set to hear public sector union dues case (July 7, 2015) (describing the Court's decision as a "landmark ruling"); Parallax World: News Through Perspectives, Power Industry Fights EPA Emissions Rules in Supreme Court (March 25, 2015) (describing Michigan v. EPA as a "landmark" case).
  5. ^ Grossmann, Andrew M. "Does EPA's Supreme Court Loss Doom Obama's Climate Agenda?". cato.org. Cato Institute. Archived from the original on October 10, 2020.
  6. ^ Brian Lipshutz, Justice Thomas & the Originalist Turn in Administrative Law, 125 Yale L.J. Forum 94, 100, 101–02 (2015) (internal quotations omitted); see also Sasha Volokh, The Washington Post, Justice Thomas delivers what he promised on February 27, 2001 (March 11, 2015) (describing Justice Thomas' critiques of the delegation doctrine).
  7. ^ a b Plumer, Brad (February 9, 2016). "The Supreme Court just put a crucial part of Obama's climate plan on hold". Vox. Retrieved October 31, 2021.
  8. ^ a b Roberts, David (August 19, 2019). "The 6 things you most need to know about Trump's new climate plan". Vox. Retrieved October 31, 2021.
  9. ^ a b c Davenport, Coral (September 26, 2016). "Obama Climate Plan, Now in Court, May Hinge on Error in 1990 Law". The New York Times. Retrieved October 31, 2021.
  10. ^ a b Plumer, Brad (September 27, 2016). "This court case will decide if Obama's signature climate policy goes down in flames". Vox. Retrieved October 31, 2021.
  11. ^ a b Meyer, Robinson (September 29, 2016). "How Obama Could Lose His Big Climate Case". The Atlantic. Retrieved October 31, 2021.
  12. ^ a b c d Mineiro, Megan (October 8, 2020). "DC Circuit Unpacks Trump's Pollution Plan Supplanting Obama Rules". Courthouse News. Retrieved October 31, 2021.
  13. ^ Eilperin, Juliet (March 28, 2017). "Trump acts to erase Obama's climate legacy". The Washington Post. Retrieved October 31, 2021 – via The Denver Post.
  14. ^ Roberts, David (October 17, 2017). "Scott Pruitt's quest to kill Obama's climate regulations is deeply shady — and legally vulnerable". Vox. Retrieved October 31, 2021.
  15. ^ Heikkinen, Niina (June 27, 2018). "Court Becoming Impatient with EPA Over Clean Power Plan". E&E News. Retrieved October 31, 2021 – via Scientific American.
  16. ^ Irfan, Umair (August 21, 2018). "EPA analysis of its own new climate proposal: thousands of people will die". Vox. Retrieved October 31, 2021.
  17. ^ a b Freidman, Lisa (August 21, 2018). "Cost of New E.P.A. Coal Rules: Up to 1,400 More Deaths a Year". The New York Times. Retrieved October 31, 2021.
  18. ^ a b c "DC Circuit Vacates Affordable Clean Energy Rule, Revives Clean Power Plan". JD Supra. January 27, 2021. Retrieved October 31, 2021.
  19. ^ Brady, Jeff (June 19, 2019). "Trump Administration Weakens Climate Plan To Help Coal Plants Stay Open". NPR. Retrieved October 31, 2021.
  20. ^ Muscon, Steven (January 19, 2021). "Federal circuit court scraps Trump administration's power plant rule". The Washington Post. Retrieved October 31, 2021.
  21. ^ Storrow, Benjamin (July 23, 2021). "Will Biden's EPA regulate power plant CO2? It won't say". E&E News. Retrieved October 31, 2021.
  22. ^ a b Barnes, Robert; Grandoni, Dino (October 29, 2021). "Supreme Court will hear cases that could undercut Biden's goals on climate, immigration". The Washington Post. Retrieved October 31, 2021.
  23. ^ a b c Liptak, Adam (October 29, 2021). "Supreme Court to Hear Case on E.P.A.'s Power to Limit Carbon Emissions". The New York Times. Retrieved October 31, 2021.
  24. ^ https://www.politico.com/news/2022/02/28/supreme-court-justices-epa-climate-authority-00012368[bare URL]
  25. ^ Howe, Amy (October 29, 2021). "Justices agree to review EPA's authority to regulate greenhouse gases". SCOTUSblog. Retrieved October 29, 2021.
  26. ^ a b c Farah, Niina H.; King, Pamela (November 1, 2021). "What the Supreme Court's move means for EPA climate rules". E&E News. Retrieved November 2, 2021.
  27. ^ Hijazi, Jennifer (November 1, 2021). "'Blockbuster' Case Threatens EPA's Climate Action, Rule Delays". Bloomberg Law. Retrieved November 2, 2021.
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