The Supreme Court concluded its important term last week, to save the long-awaited West Virginia v. Environmental Protection Agency Judgment on the last day of the announcement. A court decision limiting the scope of the EPA’s authority to regulate greenhouse gas emissions at power plants under the Clean Air Act will have long-lasting effects. However, the exact outlines of those effects are still unknown.
In short, Chief Justice John Roberts explained that the EPA’s proposed clean energy plan regulations were so broad and significant that the agency’s efforts to encourage a shift from coal to cleaner energy sources could only be launched with express permission from Congress. The Court’s judgment 6-3 relied on the doctrine of the “key questions,” which, depending on which version of the history of modern jurisprudence you’re reading, is either a newly devised strategy to limit the state’s administrative power, or a somewhat normative concept that grows out of case law for the traditional separation between the authorities. Either way, the court’s decision was clear—the potential effects of the proposed regulation were so great that the EPA couldn’t read the plain language of Section 111(d) of the Clean Air Act’s authority to take such a big step.
(We will leave for a moment the curious procedural position of the case, as the court considered this case even before the Biden administration could finalize a revised clean energy plan regulation. The court found that West Virginia and other states had the power to file an appeal even before the regulation was written, by following The back-and-forth rule procedural history is from 2015. Permanent Article 3 litigation seems to never go out of style but will be a topic for another day and another client alert.)
In writing the dissent, Justice Kagan delved long into the intricacies of the Clean Air Act and described how, in her view, the simple language and structure of Section 111(d) gave the EPA all the authority it needed to pass the regulation. As anyone who has enjoyed spending time with the Fresh Air Act can attest, it’s a long and complex piece of legislation, with an impressive amount of detail at every turn. The opposition relied on the manual labor of Congress to conclude that the law, in fact, envisioned the EPA’s broad mission to tackle air pollution in all its forms, including greenhouse gases.
The majority directly acknowledged the societal challenges posed by climate change and the importance of addressing greenhouse gas emissions. Frankly, Justice Roberts admitted that waiting for Congress to act, and to be crystal clear about what he wants when he starts acting, can be frustrating. But this is how the separation between the legislative and executive branches breaks down, even as the country faces a deeply troubling and urgent political challenge.
As for the next step, the EPA has already announced that it will continue to work on a revised clean energy plan regulation and will do so within limits. West Virginia v. Environmental Protection Agency resolution. Meanwhile, the transition to cleaner energy sources within the utility industry continues at an impressively steady pace, with or without regulation. Given the complexities of the Clean Air Act, the implications of the decision on its face may not be as consequential as feared in the context of climate policy and regulation. In itself.
On the other hand, the potential effects of judgment on all forms of executive branch organization can be enormous. The court explicitly recognized the principle of the main questions and without the need to touch chevron Briefing the legal question, he called for litigation from all sources about whether the agency has the authority to act on existing legislative provisions. So, whether the problem is with financial markets (eg, the controversial greenhouse gas reporting and disclosure rule), public health (eg, OSHA masking rules), and energy efficiency (eg, DOE lamp rules) Litigation can be anticipated by businesses in all sectors of the economy based on the doctrine of key questions being brought in federal courts across the country. We expect literally dozens of cases to be filed that will test the limits of how clear Congress must be on a given topic before the Executive Agency can regulate almost anything of public importance.