Next month, the Supreme Court will hear oral arguments in a case involving an Obama-era power-plant rule that’s no longer in effect, and never really was. The Court has agreed to hear so many high-profile cases this term, on subjects ranging from abortion to gun rights to vaccine mandates, that this one—West Virginia v. Environmental Protection Agency—has received relatively little attention beyond legal circles. But its potential ramifications are profound. At a minimum, the Court’s ruling on the case is likely to make it difficult for the Biden Administration to curtail greenhouse-gas emissions. The ruling could also go much further and hobble the Administration’s efforts to protect the environment and public health.
West Virginia v. E.P.A. “could well become one of the most significant environmental law cases of all time,” Jonathan H. Adler, a law professor at Case Western Reserve University and a prominent conservative commentator, wrote on the legal blog the Volokh Conspiracy. Or, as Ian Millhiser put it, for Vox, “West Virginia is a monster of a case.”
The case has a long and tangled history. Back in 2015, the Obama Administration issued what was called the Clean Power Plan, aimed at reducing CO2 emissions from power plants. The plan relied on the Clean Air Act, which instructs the E.P.A. to determine the “best system of emission reduction” for a given pollutant. The E.P.A. decided that, in the case of CO2, the “best system” involved not just upgrading the equipment at individual power plants but changing the way power is generated: to meet the regulations, some coal plants would have had to close or switch to burning lower-emitting natural gas. Before the plan could be implemented, the Supreme Court, in response to a lawsuit brought by more than two-dozen Republican-led states, issued a stay. The 5–4 vote was announced just days before Justice Antonin Scalia died. It was the first time that the Court had blocked a regulation before it had been reviewed by a federal appeals court.
Under Donald Trump, the E.P.A. scrapped the Clean Power Plan and replaced it with what it called the Affordable Clean Energy rule, or ACE. ACE called on coal-fired power plants to install new equipment to increase their efficiency, an approach that some researchers concluded would have actually increased greenhouse-gas emissions by causing more coal, over all, to be burned. In issuing the regulation, the Trump Administration insisted that the E.P.A. didn’t have the authority to issue the Clean Power Plan in the first place. Democrat-led states took the Trump Administration to court, and, the day before Joe Biden’s Inauguration, the U.S. Court of Appeals for the D.C. Circuit struck down ACE, saying that it was based “on a mistaken reading of the Clean Air Act.” The Clean Air Act, the court said, did give the E.P.A. broad latitude to decide what the “best system” would be.
By the time the Circuit Court had rejected ACE, the goals of the Clean Power Plan—reducing power-sector emissions by thirty-two per cent, compared with the levels in 2005—had already been met. This happened in large part because utilities engaged in precisely the sort of fuel-switching that the plan was designed to encourage. The Biden Administration said that it wouldn’t revive the plan; instead, it would come up with new rules. Before these could be written, or even really conceived, a collection of coal companies and red states, including West Virginia, petitioned the Supreme Court to hear an appeal of the D.C. Circuit case. Since neither the Clean Power Plan nor ACE was in effect, and the new rules hadn’t been drafted, most Supreme Court watchers expected the petitions to be rejected. (Adler called them “longshots.”) But then, in October, the Court announced that it would hear the cases, all rolled into one.
At the center of the consolidated case is the question of whose interpretation of the E.P.A.’s authority under Section 111(d) of the Clean Air Act is correct: the Obama Administration’s or Trump’s—or, if you prefer, blue states’ attorneys general’s or red states’. But the case, which has attracted amicus briefs from a Death Star’s worth of right-wing think tanks, could become the start of something much bigger. Vickie Patton, the general counsel to the Environmental Defense Fund, one of the many respondents in the case, said that the petitioners are “asking the Court to do far-reaching damage to all sorts of ways we protect human life: by regulating food safety, car safety, deadly pollution, and so on.” She added, “There’s an enormous amount at stake for the American people.”
The petitioners and their “friends” filed their briefs in the case last month. (Strikingly, several major utility companies, including Con Ed and National Grid, have joined with environmental groups, such as E.D.F., and blue states, such as New York and California, to oppose the petitioners.) Many of the briefs range far beyond the question of how to read Section 111(d) and seem aimed at what the former Trump adviser Steve Bannon famously called the “deconstruction of the administrative state.” (One of the briefs was co-authored by John Eastman, the lawyer who wrote the memo for the Trump legal team that urged Vice-President Mike Pence to overturn the results of the 2020 election.) Several invoke what’s become known as the “major questions” doctrine, which is popular among conservative jurists, including, notably, Justices Brett Kavanaugh and Neil Gorsuch. “It is difficult to imagine a better illustration of the need for the major questions doctrine than this case,” a brief filed by America’s Power, a group that formerly called itself the American Coalition for Clean Coal Electricity, states.
According to the major-questions doctrine, an agency can issue a regulation that would have significant political or economic ramifications only if it has explicit instructions from Congress to do so. Major questions is a challenge to the prevailing approach, known as the Chevron doctrine, which is named after a case—Chevron U.S.A., Inc. v. Natural Resources Defense Council—that was decided by the Supreme Court in 1984. Chevron holds that, if a statute is silent or ambiguous on a point, the courts should defer to an executive agency’s interpretation, as long as the interpretation is reasonable.
The Chevron doctrine is critical to government regulation as we know it: often, federal rules are written in response to broad directives from Congress to, say, protect air quality or worker safety. The Biden Administration’s mandate that companies with a hundred or more employees require workers to be vaccinated against COVID or tested weekly, for instance, relies on the Occupational Safety and Health Act of 1970. For obvious reasons, the act never mentioned COVID. Last week, when the Supreme Court heard arguments in two cases challenging the Biden Administration’s authority to issue vaccine mandates, Justices Kavanaugh and Gorsuch raised the major-questions doctrine. Critics of major questions point out that, if the Court were to favor this doctrine and abandon or curtail Chevron—a move that, after last week’s arguments, seems increasingly likely—it would, in effect, be stripping power from the executive branch and handing it over to itself. “At a moment when conservatives are likely to control the Court for at least a generation, they don’t need to win congressional or presidential elections to ensure a perpetual veto over federal policy,” Hannah Mullen, a staff attorney at Georgetown Law’s Appellate Courts Immersion Clinic, wrote recently on the legal Web site Balls & Strikes.
Several of the parties to the West Virginia case go beyond the major-questions doctrine to argue in favor of what has become known as the “non-delegation” doctrine. According to this way of thinking, Congress is barred by the Constitution from delegating powers that could be construed as legislative to the executive branch. In the nineteen-thirties, the Court relied on non-delegation to strike down provisions of some of F.D.R.’s early initiatives. The idea has basically lain dormant since 1935, but in recent years several Justices—including Gorsuch and Clarence Thomas—have indicated a desire to revive it, though what exactly this would mean, ninety years after the New Deal, is unclear. As Justice Elena Kagan noted, in a 2019 decision, non-delegation has the potential to render most of contemporary government unconstitutional, “dependent as Congress is on the need to give discretion to executive officials to implement its programs.”
“The whole model of the New Deal state is that Congress passes laws that delegate to administrative agencies sweeping regulatory power to address the public health and welfare of the American people,” Richard Lazarus, a professor at Harvard Law School, explained. “And they don’t lay out the details, because they couldn’t possibly do that.” These days, of course, Congress is barely even able to pass laws. It hasn’t approved a significant piece of environmental legislation since 1990. The practical effect of the Court’s insisting that it lay out its intentions in detail before executive agencies issue regulations to address new threats—major or otherwise—would be to prevent those rules from being written. This, presumably, is exactly what the coal companies want, and what the public—in red states, and also in blue—should be terrified of.
