Supreme Court rules EPA cannot limit greenhouse gas emissions from power plants

[This piece has been published in Restoring America to highlight how a recent Supreme Court decision will serve as a check on government overreach.]

The Supreme Court has just decided “the most watched environmental case in decades”,
West Virginia v. United States Environmental Protection Agency
. In Notice 6-3, Court Finds Environmental Protection Agency (EPA) Cannot Use Clean Air Act §111(d) to Establish Scale-Wide Greenhouse Gas Emissions Standards of the electricity sector for state power plants. The Court also explains that the major issues doctrine is crucial to this analysis and reflects both “principles of the separation of powers and a practical understanding of legislative intent”.

An agreement by Judge Neil Gorsuch, joined by Judge Samuel Alito, outlines their view of the history and application of the Clear Statements Doctrines and the Major Issues Doctrine in particular. Judge Elena Kagan wrote a dissenting opinion, joined by Judge Stephen Breyer and Judge Sonia Sotomayor.

As a reminder, here’s a summary of how the case got to court from a blog post and webinar I did last December, in anticipation of the Supreme Court argument:

Under the Clean Air Act, the Environmental Protection Agency regulates greenhouse gas emissions from various sources, including new cars and new industrial sources. But much of the country’s greenhouse gas emissions come from existing sources, such as the country’s coal and natural gas power plants, which provide more than half of America’s electricity.

In 2015, the Obama administration issued regulations for existing fossil-fuel power plants under the Clean Air Act §111(d), which allows the EPA to “establish a procedure” for each state to adopt “performance standards” for existing air sources. pollutants. The administration called this rule the “Clean Power Plan”. It was controversial, in part because it went beyond asking states to make their existing power plants more efficient. Instead, it went “beyond the fence” of the power plant to encourage non-fossil sources of electricity such as wind and solar power and reduce the fossil fuel sector.

The Clean Power Plan never went into effect because the Supreme Court suspended its implementation on February 9, 2016. The DC Circuit heard over 7 hours of arguments about the validity of the Clean Power Plan but never ruled on it because the Trump administration repealed it. and replaced it with its own rule, which it called the “Affordable Clean Energy Rule”, and was limited to promoting efficiency measures at existing fossil fuel power plants. The DC Circuit then heard an additional 9 hours of argument on this new rule, before overturning it on January 19, 2021. The court found that the EPA’s authority was not so limited.

The Supreme Court granted certiorari to decide whether the Clean Air Act §111(d) gives “authority to the EPA not only to impose standards based on technology and methods that can be applied and achieved by that source but also allows the agency to develop industry-wide systems like cap-and-trade regimes. The case is an important sequel to the court’s lines of business on the degree of deference executive agencies should receive in deciding major policy issues and whether Congress could authorize dramatic agency action from provisions relatively obscure – hiding an elephant in a mouse hole.

The review can be found here.

The Supreme Court pointed out that “the only question of interpretation before” was “narrow”: “whether the “best emission reduction system” identified by the EPA in the clean energy plan fell within the authority granted to the Agency in Section 111(d) of the Clean Air Act. Some had thought this might explicitly limit the Chevron Doctrine or revert to the non-delegation doctrine. This is a narrower decision, but it may exclude some of the more aggressive measures the Biden administration might have considered to reduce sector-wide greenhouse gas emissions in areas such as utilities, refineries and oil and gas development.

This piece originally appeared in the AEIideas blog and is reproduced with the kind permission of the American Enterprise Institute.

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