[Note: This post is still being updated]
Today the Supreme Court decided West Virginia v. Environmental Protection Agency. Chief Justice Roberts wrote the opinion for the Court, rejecting claims that the case was non-justiciable and concluding that the EPA lacks broad authority to regulate greenhouse gas emissions from power plants under the Clean Air Act. Relying upon the “major questions” doctrine, the Chief Justice explained that Section 111 of the Clean Air Act does not allow the EPA to require generation shifting (i.e. the replacement of coal with renewable energy) to reduce greenhouse gas emissions. For quick background, my prior posts on the WVA case are indexed here.
The Chief Justice’s opinion for the Court was joined by the Court’s conservatives. Justice Gorsuch has a concurring opinion, joined by Justice Alito. Justice Kagan writes the dissent on behalf of herself and the other liberal justices.
As a threshold matter, the Chief Justice explains that the case is justiciable. Even though the EPA is not currently enforcing greenhouse gas limits under Section 111. This is because the question on appeal is whether the petitioners experience an injury that is fairly traceable to the judgment below, and they easily meet that standard (as I noted here). Further, the government’s stated intention to adopt new rules does not moot the case. Of note, Justice Kagan concedes the Court had jurisdiction to decide the case, and that it is not moot for purposes of Article III, but she makes clear she wishes the Court had declined to hear the case on prudential grounds.
On the merits, here is how the Chief Justice frames the issue in the case:
The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into the air. 84 Stat. 1683, 42 U. S. C. §7411(a)(1). That standard may be different for new and existing plants, but in each case it must reflect the “best system of emission reduction” that the Agency has determined to be “adequately demonstrated” for the particular category. §§7411(a)(1), (b)(1), (d). For existing plants, the States then implement that requirement by issuing rules restricting emissions from sources within their borders.
Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.
The question before us is whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.
As already noted, the Chief Justice explains that the EPA does not have such authority. Whatever authority the EPA has to mandate that utilities adopt the “best system of emission reduction” that “has been adequately demonstrated,” it does not extend to what the Obama Administration had proposed in the Clean Power Plan (and the D.C. Circuit had embraced): Basing emission limits on generation shifting.
Of particular importance, Chief Justice Roberts stresses that this conclusion is driven by recognition that in “extraordinary cases”—”cases in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion”—”call for a different approach” and “provide a ‘reason to hesitate before concluding that Congress meant to confer such authority.” In other words, even if one might conclude that the EPA’s preferred interpretation of Section 111 is reasonable, the “major questions” doctrine counsels a narrower construction of the EPA’s authority. As he writes:
in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. Utility Air, 573 U. S., at 324. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims.
. . . .updating . . .
The post Supreme Court Rejects Broad EPA Authority to Regulate Greenhouse Gases from Power Plants (Developing) appeared first on Reason.com.
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