WASHINGTON – The U.S. Supreme Court has reined in the Environmental Protection Agency’s authority to regulate greenhouse gas emissions from power plants.
With the June 30 ruling in West Virginia v. U.S. EPA, the justices overturned a D.C. Circuit Court of Appeals ruling and said Congress did not give the EPA the power to create emission caps with its Clean Power Plan. Chief Justice John Roberts wrote the 6-3 ruling.
West Virginia Attorney General Patrick Morrisey hailed the decision, calling it a “great win for West Virginia and her residents.”
Morrisey
The D.C. Circuit had ruled a federal law provision gave the EPA such authority. Morrisey says the agency now can no longer “sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation.”
“We are pleased this case returned the power to decide one of the major environmental issues of the day to the right place to decide it: the U.S. Congress, comprised of those elected by the people to serve the people,” Morrisey said. “This is about maintaining the separation of powers, not climate change.
“Today, the court made the correct decision to rein in the EPA, an unelected bureaucracy. And we’re not done. My office will continue to fight for the rights of West Virginians when those in Washington try to go too far in asserting broad powers without the people’s support.”
Morrisey argued the case for West Virginia and 18 other states before the Supreme Court on February 28.
“Our team did a great job in explaining why the Supreme Court should define the reach of EPA’s authority once and for all, and it paid off with today’s ruling,” Morrisey said. “We intend to use the strong win the court gave us in today’s decision to keep fighting for our State, local communities and our jobs.
“We are optimistic that the decision will save many West Virginia jobs.”
In the ruling, Roberts said the only question before the court was “whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority granted to the agency in … the Clean Air Act.”
Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor dissented.
“The court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy,” Kagan wrote. “I cannot think of many things more frightening.”
Others chimed in on the verdict:
* West Virginia Gov. Jim Justice:
“I applaud the Supreme Court’s decision today in West Virginia v. EPA. This ruling in favor of West Virginia will stop unelected bureaucrats in Washington, D.C., from being able to unilaterally decarbonize our economy just because they feel like it. Instead, members of Congress who have been duly elected to represent the will of the people across all of America will be allowed to have a rightful say when it comes to balancing our desire for a clean environment with our need for energy and the security it provides us.
“People like to say ‘D.C. has too much power.’ They’re right. For too long, our federal bureaucracy has had almost unlimited, unchecked power over us with little accountability to the public. Agencies shouldn’t get to make unilateral decisions affecting all of our lives without Congress’s vote. That’s what this case really does, it gives power back to the people.
“West Virginia is one of the few states in the nation where all agency regulations must be approved by a vote of the state Legislature before they take effect. I’m glad that the federal government will now be following the West Virginia model.
“I want to thank our Attorney General for all his hard work arguing this case right up to the Supreme Court. This ruling will have a positive impact on our country for generations to come and I’m proud that West Virginia was the state leading the way in this landmark case.”
* U.S. Senator Shelley Moore Capito (R-W.Va.):
“As detailed in the bicameral amicus brief I led along with Congresswoman (Cathy) McMorris Rodgers (R-Washington), this case was critical in making clear that EPA does not have the authority to issue regulations that transform how we use and generate electricity in this country. If Congress had intended to give EPA such sweeping authority to transform an entire sector of our economy, Congress would have done so explicitly.
“Today’s decision by the Supreme Court is welcome news and further proves that EPA overstepped its authority by imposing enormously burdensome regulations on states to reconfigure our electric grid despite Congress’s rejection. I congratulate Attorney General Morrisey for his leadership on this important victory for West Virginia and the entire nation, which ensures that EPA can never issue an overreaching regulation like the Clean Power Plan again. EPA must follow the law, and as Ranking Member of the Environment and Public Works Committee, I will continue to conduct oversight of EPA to make sure the agency does not attempt to devastate the people and industries of West Virginia as it did with the Clean Power Plan ever again.”
* West Virginia Treasurer Riley Moore:
“Today’s decision is a victory for the rule of law and for West Virginia taxpayers, who depend on the fossil fuel industries for high-paying jobs, insurance and public infrastructure. For years, unelected bureaucrats in the administrative state have been trying to destroy our fossil fuel industries by transforming the EPA into a Communist-style central planning authority because they know they can’t get their radical environmental policies passed through Congress. Today, the U.S. Supreme Court ruled this overreach must end.
“The actions by the EPA, that the Court today found unlawful, have been used by financial institutions to justify discriminating against the companies that are critical to our citizens’ way of life in West Virginia.
“I applaud Attorney General Patrick Morrisey for his consistent leadership in fighting this federal overreach and for standing up for the rights of our citizens. West Virginia – which has borne the brunt of the war on coal and other fossil fuels – is proud to have leaders who are banding together to fight back against radical environmentalists in government and the ESG movement.”
* Brian Lego, West Virginia University Bureau of Business and Economic Research, Chambers College of Business and Economics:
“Given the significant shift in fuels used to electricity generation that has occurred over the past decade or so, the ruling is not expected to lead to a dramatic reversal of these trends or even an appreciable increase in domestic steam coal demand. Instead, we will likely see a slower rate of decline in coal consumption going forward as some coal-fired power plants will remain in operation longer because of this new ruling. Indeed, a major portion of the shift in demand away from coal use in the electric power sector has emerged from falling costs for natural gas and renewable generation sources. The ruling could alter this trajectory somewhat, but many utilities around the U.S. have already retired coal-fired assets and/or plan to do so over the next five to 10 years as they transition to other fuel sources. In short, this may slow down the decline of coal consumption, but it won’t completely unwind a long-term trend.
“For a coal-producing state such as West Virginia, global demand for coal has become an increasingly larger driver of overall production activity in recent years and will continue to do so over the long term. Indeed, coal exports account for roughly one-third of the state's overall production in most years, but the volatile and unpredictable nature of demand from importing countries produces big fluctuations in production activity on a year-to-year basis. Given the way domestic demand for coal has declined in the past decade or so, much of it from the electric utility sector, global demand patterns will make a bigger difference.”
* John Kilwein, chairman and associate professor of political science, WVU Eberly College of Arts and Sciences:
“The impacts of West Virginia vs. EPA are clear: it will be more difficult for the federal government to effect policy change through administrative action. Congress will need to write clearer, more precise enabling legislation, often difficult in a divided body that lacks the necessary technical expertise to craft plain mandates in complex policy areas. Administrative agencies will need to hew very closely to those congressional outlines of authority. And regardless of how well the legislative and executive branches follow this new course set down by the majority in West Virginia vs. EPA, the expanded major questions doctrine gives opponents of regulation an easier path to the courts to challenge and obstruct rules they dislike.
“Today, the target is regulation dealing with the existential question of climate change, and the majority in an unforced policy choice sided with the fossil fuel burners; in the future, basically anything the federal government regulates is a target for a Court that has its newly expanded major questions doctrine in its judicial holster.”
* James Van Nostrand, director of WVU College of Law' Center for Energy and Sustainable Development:
“The decision left in place the administrative law concept of Chevron deference – based on the 1982 decision in Chevron v. Natural Resources Defense Council – under which courts generally defer to the expertise of agencies in adopting regulations within their area of expertise. Today’s decision states that Chevron deference does not apply when an agency action has ‘vast economic and political significance,’ such as the regulation of greenhouse gases in the electric generation sector. When a ‘major question’ is involved, there must be a specific grant of authority for the agency to take such action, and EPA exceeded its authority under Section 111(d) when it adopted the Clean Power Plan.
“Unfortunately, today’s decision limits EPA’s ability to address climate change, by imposing a very narrow reading on the agency’s authority under a particular section of the Clean Air Act. As the Biden Administration moves forward to adopt a successor regulation to Obama’s Clean Power Plan and the Trump Administration’s Affordable Clean Energy Rule, it will be constrained in its reliance on a broad grant of authority under the Clean Air Act. Rather, the court has found that this issue involves a ‘major question,’ and EPA will need to point to express statutory authority for its action.”
* Robert Duval, associate professor, WVU School of Public Health's Department of Health Policy, Management and Leadership:
“Environmental problems are difficult to regulate because they result from costs imposed on people who are not parties to the economic transactions. Such as the production and consumptions of many things. Like coal. An unregulated public good, like air, is difficult to protect when the impact of fossil fuel consumption is only felt globally, and not at all locally. So when it comes to carbon dioxide, it is hard to make the connection to West Virginians. SCOTUS has now removed a policy tool to redress environmental issues federally that can balance the distribution of these costs and benefits. Unfortunately, we will not protect our nation and our people until we begin to ask and answer questions like ‘How much is a coal mining job worth in terms of lives lost in a heat wave or in a 1,000-year flash flood or in homes lost to coastal flooding due to sea level rise?’ The balance sheet for this exists whether we want to look at it or not.”
* Sam Workman, director of WVU's Rockefeller Institute for Policy Research and Public Affairs:
“Typically, agencies draw a broad range of authority to act from statutes like the Clean Air Act or the Securities and Exchange Act that allow them to make policy even without real-time legislation from Congress. In West Virginia vs. EPA, SCOTUS curtails this policymaking by requiring ‘clear congressional authority’ in detailed legislation. Any issue that draws considerable attention and generates conflict between the parties is likely to fall into the category of ‘major’ requiring express congressional authority. SCOTUS does stop short of invalidating existing regulatory policies but certainly opens the door for future decisions to curtail and roll-back regulatory policies. The decision means that the executive branch will no longer be able to use executive policymaking to substitute for legislative success in Congress.”
* Devin Hartman, R Street director of energy and environmental policy:
"West Virginia v. Environmental Protection Agency may have major legal ramifications but minimal climate impact. Conventional regulation under the Clean Air Act could reduce emissions incrementally, but it is not effective for driving transformative change. Keep in mind, market forces caused the power industry to hit the emissions target of President Obama's Clean Power Plan a decade early. To reduce future emissions, we should focus on modernizing regulations that prevent clean technology deployment rather than micromanaging the existing fossil fleet.
“Government no longer needs to force private capital markets to address climate change. The private sector needs the ability to deploy capital swiftly and with the best emissions information. The Environmental Protection Agency's best climate role may be to enhance emissions transparency, which is currently subpar.”
* Philip Rossetti, R Street resident fellow in energy policy:
“The pathway to emission mitigation is through Congress setting policies and defining the authority of the executive branch to meet them, not a shotgun approach to regulation where both policymakers and industry have to try and guess what the courts will say. The real environmental issue here is not the court’s decision, but an understanding of what durable climate policy looks like. For this administration, there always was and will be a risk that big, transformative climate rules that test the limits of their authority would get shot down by the Supreme Court.
“The administration took a real risk in setting an international climate target under the Paris Agreement without either buy-in from Congress or established authority to implement policy to meet its promised goals. The ruling in West Virginia v. Environmental Protection Agency is a blow to the administration’s future negotiation credibility, but the remedy is bipartisanship and congressional collaboration.
“The targets of the Clean Power Plan were met a decade early as a result of markets and cheap natural gas, not the rule itself, which was stayed six months after finalization. Every administration has a bias towards assuming that their regulations are going to be effective and without tradeoffs, but history shows that the SCOTUS ruling may matter little for environmental outcomes because the market is a far more powerful driver of change than regulations.”
* Lawrence Gostin, faculty director of Georgetown Law’s O’Neill Institute for National and Global Health Law:
“When the Supreme Court took up the case of West Virginia v EPA, it was never simply concerned with the EPA’s Clean Power Plan from 2015 — a plan which was never implemented. This move was part of the conservative Court’s larger agenda to gut the regulatory state and decimate executive powers to protect Americans’ health and safety. In a stark departure from its own precedent, the Court refused to defer to the EPA’s interpretation of its statutory authority, tying the agency’s hands in responding to what is likely the biggest threat of our generation, climate change. But the breadth of this opinion goes beyond the EPA’s ability to regulate the environment and touches the authority of all federal agencies that issue regulations to protect our environment, health, and safety. The ripple effects of this decision are profound, and could hamstring agencies like CDC, OSHA, EPA, FDA, and CMS from regulating a huge number of issues.”
* Andrew Twinamatsiko, O’Neill associate director of the Health Policy and the Law Initiative:
“Today’s Supreme Court decision in West Virginia v EPA is a huge blow to any hope of meaningful effort to combat climate change. With a stroke of a pen, the Court has upended the regulatory framework upon which Congress and federal agencies have relied for almost a century to adopt and implement federal legislation. Through the Clean Air Act, Congress authorized the EPA to set guidelines to reduce emissions, in line with its long reliance on regulatory agencies. The EPA, as directed by Congress, then adopted the Clean Power Plan in 2015. But today, the Supreme Court ruled that Congress’ clear directive to the EPA was not ‘clear’ enough. Even more concerning, the Supreme Court was so eager to constrain EPA’s power that it ruled on this case even though the Clean Power Plan is no longer in place.
“The Court’s decision in West Virginia goes beyond the EPA’s power to fight climate change. It will limit federal agencies from implementing and interpreting federal law and give unelected judges the power to second-guess Congress and the White House. West Virginia is especially alarming for those who care about health care and public health because Congress relies on the expertise of federal agencies — such as the FDA, CDC, NIH, etc. — to interpret and implement legislation. West Virginia is sadly yet another stop on the Court’s path to handcuff federal agencies and follows recent decisions to gut the CDC and OSHA’s power to fight COVID-19.”
* Ginger Cassady, executive director of the Rainforest Action Network:
"It’s nothing short of a national crisis to see the highest court of the land become a tool for climate change deniers, polluting profiteers, misogynists, shameless gerrymandering, voter suppression, and religious extremists intent on imposing their beliefs upon an entire nation while chipping away at the division between church and state.
“At this point, for those in positions of high power to deny the urgency and the stakes of the climate crisis is to condemn everyone alive today and generations to come to life in a sick and impoverished world.”
* Cale Jaffe, director of Univesity of Virginia Environmental Law and Community Engagement Clinic and member of Virginia Coal and Energy Commission:
“I am most struck by the fact that Chief Justice Roberts, writing for the majority, never mentions the foundational case on the Environmental Protection Agency’s authority to regulate greenhouse gas pollution under the Clean Air Act, the Court’s 2007 ruling in Massachusetts v. EPA. Justice Gorsuch’s concurrence avoids any reference to this critically important precedent as well.
“Justice Kagan, in dissent, leads with it. She writes, ‘Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to the most pressing environmental challenge of our time.’ Justice Kagan goes on to cite the landmark decision in Massachusetts five more times throughout her dissent.”
* Julia Mahoney, UVa law professor:
“In West Virginia v. EPA, the court explained that it is generally the job of Congress, not administrative agencies, to make major decisions about pressing economic and social questions. In the absence of clear congressional delegation of power, the court declined to find that Congress had authorized the EPA to adopt a sweeping regulatory scheme under the Clean Air Act. Today’s holding will be understood by many as a victory for the principles of separation of powers and the bounded authority of the administrative state.”
* Mike Moncla, president of Louisiana Oil & Gas Association:
“Today’s decision by the Supreme Court is a step in the right direction for our great nation. This decision takes governmental overreach from appointed bureaucrats and puts it back into the hands of legislators.
“The EPA’s actions and regulations have been in lockstep with the left wing’s green agenda. These types of actions cost Americans at the pump, as they continue to tighten the noose on producers and refiners, making it harder to drill for oil and gas, and more expensive to refine it. We applaud this Supreme Court decision and look forward to more balanced decisions toward our industry in the future.”
