West Virginia v. Environmental Protection Agency: The Agency's Climate Authority

• Date: 01 June 2022
• Author: Michael Gerrard, Joanne Spalding, Jill Tauber, and Keith Matthews

6-2022 ENVIRONMENTAL LAW REPORTER 52 ELR 10429

DIALOGUE

WEST VIRGINIA V. ENVIRONMENTAL

PROTECTION AGENCY: THE AGENCY’S

CLIMATE AUTHORITY

SUMMARY

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

School.

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 ecient, 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 brieng

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 oce, EPA did

repeal the Clean Power Plan and issued a new set of regu la-

tions called the Aordable 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 Aordable Clean Energy Ru le was also challenged

in court and on January 19, 2021, the day before Presi-

dent Trump left oce, 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 Aordable 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 oce, 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.