Last week, the Supreme Court concluded its momentous term, saving the long-anticipated West Virginia v. EPA ruling for the last day of announced opinions. The court's decision limiting the scope of EPA's authority to regulate power plant greenhouse gas (GHG) emissions under the Clean Air Act will have long-lasting impacts. The precise contours of those impacts, however, remain to be seen.
In short, Chief Justice John Roberts explained that EPA's proposed Clean Power Plan regulations were so broad and so significant that the agency's efforts to encourage the conversion from coal to cleaner sources of power could only be triggered by an express authorization by Congress. The court's 6-3 ruling relied on the "major questions" doctrine, which, depending on what version of recent jurisprudence history you read, is either a newly devised strategy to limit the power of the administrative state, or a fairly standard concept growing out of traditional separation of powers case law. Either way, the court's decision was clear – the potential effects of the proposed regulation were so substantial that EPA could not read into the plain language of Section 111(d) of the Clear Air Act authority to take such a big step.
(We will leave for a moment the case's peculiar procedural posture, whereby the court took up this case even before the Biden administration could finalize a revised Clean Power Plan regulation. The court found that West Virginia and other states had standing to bring the challenge even before the regulation was written, following the rule's back-and-forth procedural history from 2015. Article III standing litigation apparently never goes out of style but will be a topic for another day and another client alert.)
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