September 23, 2022
What Does W. Virginia v EPA Mean for Climate Action?
The Supreme Court's decision will likely provide another tool for polluters to delay sensible standards. States and Congress will need to step up to protect our environment and public health.
The U.S. Supreme Court’s decision in West Virginia, et al. v. U.S. EPA was unprincipled extreme judicial activism. It weakened the EPA’s ability to regulate greenhouse gases and other dangerous air pollutants, even as climate change impacts worsen with more extreme weather events and the public’s needs for healthier clean air become more acute. The Court overreached to take this case, which was initiated years ago by “red” states and coal companies challenging the Obama-era Clean Power Plan, a clean air regulation that was not even being applied and enforced.
This is a case of what conservative legal scholars and politicians regularly criticize as the Supreme Court engaging in judicial activism, except when, as now, some of them seem to like the result.
So, what happened in this case?
First, the Supreme Court clearly overreached and surprised many attorneys and legal scholars by taking this case in the first place. Each term, the Supreme Court chooses to take 70-90 cases for review, mostly by granting discretionary petitions for writ of certiorari – what are conventionally called “cert petitions.” Thousands of cert petitions are filed each year. This cert petition involved the Obama-era Clean Power Plan regulatory standards that were adopted by EPA in 2017. The standards were stayed from taking effect by a previous Supreme Court decision and repealed by the Trump administration in 2019. They had never taken effect, and the current EPA indicated that it didn’t intend to apply them.
The Clean Power Plan established emission guidelines for states to follow in limiting carbon dioxide (CO2) emissions from existing coal and natural gas plants and did so in a flexible manner.
Second, the Supreme Court majority’s opinion was based on an expansion of the judicially-created “major questions” doctrine, which has no direct textual basis in the Constitution. The majority holds that the Supreme Court Justices themselves can decide if a regulation adopted by a federal agency, such as the EPA, presents a large enough economic impact to be considered a “major question.” In that case, Congress must itself enact the specific detailed standards instead of providing for the federal agency to do so. How large an economic impact? Well, that’s up to five Justices to decide as they see fit.
The Court’s decision will likely provide another tool for polluters to delay sensible EPA environmental and public health standards designed to protect clean air and water. While the public is calling for climate action, the Supreme Court is creating unnecessary barriers to beneficial actions that are based on sound science and longstanding Congressional statutes. States, as well as Congress, will need to step up and act more strongly to protect our environment and public health while the Supreme Court installs roadblocks to federal agency actions.
Here’s what the Supreme Court’s decision did not do.
Notwithstanding the hopes of some of the red states’ attorneys generals and the fossil-fuel company petitioners:
First, the Court’s divided Opinion did not overturn Massachusetts v. EPA in which the Court held that the Clean Air Act’s definition of pollutant includes CO2 and other greenhouse gases.
Second, the Court did not overturn the EPA’s scientifically based “endangerment finding” that greenhouse gas pollutants endanger public health. The finding – based on well-established and sound science – is the necessary predicate for the EPA’s rulemakings to adopting greenhouse gas and other Clean Air Act standards to limit air emissions. Standards can apply to emissions from power plants and other stationary sources (such as oil refineries and cement kilns), from vehicles of all kinds (car and trucks), and from other transportation sector sources such as freight trains’ diesel locomotives.
Here’s what Congress then did in response in the Inflation Reduction Act
Congress specifically confirmed the legislative basis for the Supreme Court’s ruling in Massachusetts v. EPA by stating that CO2 is a “pollutant” under the Clean Air Act. Congress also clarified that it intended for EPA to regulate greenhouse gases, thereby undermining the “major question” premise in the Supreme Court’s West Virginia v. EPA decision, in which, the 6-3 majority opinion of the Court, written by Chief Justice Roberts, indicated that Congress’ intentions were not clear enough when it comes to these greenhouse gas pollution reduction regulations.
No doubt, some red states and fossil-fuel aligned businesses and interests will continue to litigate these issues, especially regarding the sufficiency and extent of Congress’ action on the West Virginia v EPA issue, but we have three solid steps forward:
First, Congress has now spoken on the definition of “pollutant” under the Clean Air Act.
Second, the force of West Virginia v EPA has been sufficiently weakened as Congress has spoken, and that creates legal space for EPA to move forward with greenhouse gas pollution reduction regulatory standards across industry sectors – albeit navigating some legal land mines.
Third, the force of West Virginia v EPA has been sufficiently weakened for the knee-jerk, almost-certain subsequent red state and fossil-fuel aligned interests’ likely challenges to the upcoming EPA greenhouse gas reduction regulatory standards when adopted.
The legal landscape is ever-changing, but ELPC is on it. We will continue to fight for climate solutions, healthy clean air, and safe clean water in the Midwest and beyond.