6-2022 ENVIRONMENTAL LAW REPORTER 52 ELR 10429
WEST VIRGINIA V. ENVIRONMENTAL
PROTECTION AGENCY: THE AGENCY’S
On February 28, 2022, the U.S. Supreme Court heard oral arguments for the landmark West Virginia v. EPA
case, involving the scope of powers delegated to the U.S. Environmental Protection Agency (EPA) through
the Clean Air Act. The Court’s decision will affec t administrative law, and could have major consequences for
environmental law, particularly the Agency’s power to regulate greenhouse gas emissions and take action on
climate change. On March 1, the Environmental Law Institute hosted a panel of lead ing experts to discuss the
case, the arguments, and what form the decision may take. Below, we present a transcript of that discussion,
which has been edited for style, clarity, and space considerations.
Michael Gerrard (moderator) is the Andrew Sabin
Professor of Professional Practice at the Columbia Law
Joanne Spa lding is the Acting Legal Director and Chief
Climate Counsel at the Sierra Club.
Jill Tauber is Vice President of Litigation for Climate and
Energy at Earthjustice.
Keith Matthews is Of Counsel at Wiley Rein L LP.
Michael Gerrard: In 2015, the U.S. Environmental Pro-
tection Agency (EPA) issued a set of regulations ca lled the
Clean Power Plan.1 It was designed to reduce greenhouse
gas emissions from electric power plants mostly by reduc-
ing the use of coal. is reduction is es sential if we’re going
to meet our climate targets. e Clea n Power Plan required
each state to come up with a plan to reduce these emis-
sions. at would usually involve not only making the
power plants themselves more ecient, but also changing
the mix of fuels used, procuring renewable energy, allow-
ing emissions trading, a nd other actions.
e Clean Power Plan was immediately met with a bar-
rage of litigation. e main argument was that in various
ways EPA was exceeding the authority that the U.S. Con-
gress had given it under the Clean Air Act in issuing the
regulations. e cases went to the U.S. Court of Appeals
for the District of Columbia (D.C.) Circuit,2 which refused
to stay the rules, and the D.C. Circuit set up a brieng
schedule. But in February 2016, before the briefs were due,
the U.S. Supreme Court surprised just about everyone and
1. Carbon Pollution Emission Guidelines for Existing Stationary Sources, 80
Fed. Reg. 64662 (Oct. 23, 2015).
2. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. Oct. 29, 2015).
issued a stay that blocked the plan so long as the litig a-
tion was proceeding.3 is wa s by a vote of 5 to 4, and no
explanatory opinion was issued.
e D.C. Circuit heard the argument in September
2016, but then in November, Donald Trump was elected
president. He had promised during his campaign to repeal
the Clean Power Plan, and after he took oce, EPA did
repeal the Clean Power Plan and issued a new set of regu la-
tions called the Aordable Clean Energy Rule.4 e cha l-
lenge to the Clean Power Plan became moot and the D.C.
Circuit never issued a decision on that case.
e Aordable Clean Energy Ru le was also challenged
in court and on January 19, 2021, the day before Presi-
dent Trump left oce, the D.C. Circuit issued a decision
in the case American Lung Ass’n v. Environmental Protec-
tion Agency.5 e court ru led that the Aordable Clean
Energy Rule and the repea l of the Clean Power Plan were
invalid because EPA under President Trump was relying
on an overly narrow construction of the relevant Clean
Air Act provision.
After President Joe Biden took oce, EPA indicated
that it was not going to reinstate the Clean Power Plan.
Instead, it was going to come up with a new set of mea-
sures to reduce power plant emissions. While EPA was at
work developing the new measures, the Supreme Court
surprised everyone again by agreeing to review the Janu-
ary 19 decision from the D.C. Circuit. e Supreme Court
accepted four of the petitions for certiorari that had been
led. ose were from the state of West Virginia, the state
3. West Virginia v. EPA, No. 15A773 (U.S. Feb. 9, 2016).
4. Repeal of the Clean Power Plan, 84 Fed. Reg. 32520 (July 8, 2019).
5. No. 19-1140 (D.C. Cir. Jan. 19, 2021).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.