Supreme Court Could Restrict US Agencies’ Regulatory Power in Air Pollution Case

The U.S. Supreme Court will be hearing oral arguments on February 28, 2022. West Virginia v. EPA, a case that centers on the U.S. Environmental Protection Agency’s authority to regulate greenhouse gas emissions that drive climate change. The court’s decision could have wide-ranging implications, not only for climate change, but also for federal regulation in many other areas.

This case stems largely from U.S. actions to reduce greenhouse gas emission from power plants over the past decade. In 2016, the Supreme Court blocked the Obama administration’s Clean Power PlanThis was to reduce these emission. The Clean Power Plan was repealed by the Trump administration and replaced with the much more stringent Affordable Clean Energy Rule. Various parties challenged this measure, and a federal court invalidated it A day before Trump’s departure.

The EPA has now stated that it does not intend to follow through with any of these rules and plans to issue an entirely new set of regulations. In such situations, courts wait for agencies to resolve their position before intervening. This allows agencies the opportunity to evaluate the evidence and apply their expertise before stepping in. It allows courts to examine a concrete rule with real consequences.

From my work as an environmental law scholar, the Supreme Court’s decision to hear this case is surprising, since it addresses regulations the Biden administration doesn’t plan to implement. It reflects a keen interest on the part of the court’s conservative majority in the government’s power to regulate – an issue with impacts that extend far beyond air pollution.

What is the EPA’s latitude?

The court granted petitions by coal companies and Republican-led States to examine four issues. First, the Clean Air Act Section 111 asks whether the EPA can control pollution by only considering changes to polluting facilities. Or can it also employ “beyond the fenceline” approaches that involve broader policies?

Section 111 The EPA is directed to identify and regulate air pollution sources such oil refineries and power stations. The agency must determine the “best system of emission reduction” for each category and issue guidelines quantifying the reductions that are achievable under this system. The EPA will then ask states to submit plans to reduce emissions.

The Trump administration did not consider any changes that could be made to coal-fired power stations when deciding how to reduce emissions. The Obama administration, however, considered replacing these plants with electricity from lower carbon sources like natural gas and renewable fuels.

The question of EPA’s latitude under Section 111 implicates a landmark decision of administrative law, Chevron v. Natural Resources Defense Council. That 1984 ruling instructs courts to follow a two-step procedure when reviewing an agency’s interpretation of a statute.

If Congress has given clear direction on the question at issue, courts and agencies must follow Congress’ expressed intent. However, if the statute is “silent or ambiguous with respect to the specific issue,” then courts should defer to the agency’s interpretation of the statute as long as it is reasonable.

In recent years, conservative Supreme Court justices were criticized the Chevron decision as too deferential to federal agencies. This approach, they claim, allows unelected regulators excessive power.

Could this case enable the court’s conservatives to curb agencies’ authority by eliminating Chevron deference? Perhaps not. This case presents a less-than-ideal vehicle for revisiting Chevron’s second step.

The Trump EPA argued that the “beyond the fenceline” issue should be resolved under the first step of Chevron. Section 111, according to the administration, forbids the EPA shifting to natural gases or renewable power sources. The lower court accordingly resolved the case under Chevron’s first step – rejecting the Trump EPA argument – and did not decide whether EPA’s view merited deference under Chevron’s second step.

Chevron deference aside, a restrictive interpretation of Section 111 could have serious implications for EPA’s regulatory authority. A narrow interpretation of Section 111 may exclude proven regulatory tools for reducing carbon polluting substances, such as emissions trading shifting to cleaner fuels.

Are climate change regulations an infringement of state authority?

The second question focuses on Section 111’s allocation of authority between the states and the federal government. The Clean Air Act requires that the EPA issue emission reduction guidelines to states for establishing pollution standards.

In repealing the Clean Power Plan, the Trump administration argued that the plan coerced states to apply EPA’s standards, violating the federal-state balance reflected in Section 111. Republican-led States are now making this same argument.

However, the matter before the court is the Trump administration’s Affordable Clean Energy Rule, which does not present the same federalism issue. The question of if the states were given enough flexibility by the now-defunct Clean Power Plan remains unanswered.

In my view, the court’s willingness to nonetheless consider federalism aspects of Section 111 could bode poorly for the EPA’s ability to issue meaningful emission reduction guidelines in the future.

Is carbon pollution from power plants a ‘major question’?

The third issue that the court will consider is whether regulation of power plant carbon emissions constitutes a “major question.” The major questions doctrine This provides that an agency cannot regulate issues with large economic or political consequences without explicit direction from Congress.

The Supreme Court has never ruled on a major question. has applied the doctrine on only five occasions. In 2000, it was the most prominent example. invalidated the Food and Drug Administration’s attempt to regulate tobacco. The court noted that the FDA had never previously regulated tobacco, that its statutory authority was unclear and that Congress had assumed that such authority was lacking.

Comparatively, the Supreme Court affirmed reaffirmed the EPA’s authority to regulate greenhouse gases under the Clean Air Act, and the agency’s authority to regulate power plant pollution under Section 111 is not in doubt.

However, when the Supreme Court struck down the workplace COVID-19 vaccine-or-test mandate on Jan. 13, 2022, Justice Neil Gorsuch penned a concurrence touting the major questions doctrine’s potential to check the power of federal agencies. An expansive interpretation of the major questions doctrine here could cripple EPA’s ability to respond to climate change under the Clean Air Act.

Congress may not be able to meet the court’s demands for more specific statutory authorization. Many observers worry that a broad interpretation might have led to a misinterpretation of the doctrine. repercussions far beyond climate change, radically curbing federal agencies’ power to protect human health and the environment, in response to both new threats such as the COVID-19 pandemic and familiar problems such as food safety.

Is Congress delegating too much power to EPA?

Finally, the court will consider whether Section 111 delegates too much lawmaking authority to EPA – a further opportunity for conservative justices to curb the power of federal agencies. The nondelegation doctrine Congress cannot delegate its core lawmaking powers and authority to regulatory agencies. When Congress authorizes agencies to regulate, it must give them an “intelligible principle” to guide their rulemaking discretion.

The court has been reviewing deferential statutory delegations of power for decades. Since the 1930s, the court has not invalidated any statute that violates the nondelegation doctrine.

In my view, Section 111 should easily satisfy the “intelligible principle” test. The statute outlines specific factors that the EPA should consider when determining the best system for emission reduction. These include costs, health, environmental impacts, as well as energy requirements.

Still, the case presents an opportunity for the court’s conservatives to invigorate the nondelegation doctrine. A 2019 dissenting opinion by Justice Gorsuch, joined by Chief Justice John Roberts and Justice Clarence Thomas, advocated a more stringent approach in which agencies would be limited to making necessary factual findings and “filling up the details” in a federal statutory scheme. Whether Section 111 – or many other federal laws – would survive this approach is unclear.

Professor Lin was a trial lawyer for the Environment and Natural Resources Division of U.S. Department of Justice between 1998 and 2003. He was a law student to the Honorable Merrick Galrland of the U.S. Court of Appeals. Circuit and to James Browning of U.S. Court of Appeals, Ninth Circuit.