Last month, the United States Supreme Court issued its decision in West Virginia v. Environmental Protection Agency, limiting one of the EPA’s tools for regulating carbon dioxide emissions from fossil-fuel power plants. The decision is likely to have wide ramifications.

Under the Obama administration in 2015, the EPA passed rules known as the Clean Power Plan (CPP) to reduce carbon dioxide emissions from existing power plants. The CPP consisted of three types of measures, which the EPA called “constituent elements”.

As part of the first building block, the EPA ordered specific coal-fired power plants to implement measures designed to reduce carbon dioxide emissions. The other two building blocks were more innovative, and therefore more controversial. They required a shift in electricity generation from coal-fired power plants to gas-fired plants that emit less carbon dioxide, and then to renewables such as wind and solar power.

To achieve this goal, fossil fuel plant operators could reduce electricity generation, build or invest in cleaner power generation, or participate in a cap and trade program involving the purchase or sale of emission quotas.

Majority says EPA overstepped authority

The EPA claimed that the CPP was authorized by a rarely invoked 1970 amendment to the Clean Air Act, which allowed the EPA to impose on existing power plants the “best emission control system…which has been sufficiently demonstrated”. The EPA predicted its rule would require billions of dollars in compliance costs and higher energy prices, the retirement of coal-fired power plants and the elimination of tens of thousands of jobs.

Congress itself had repeatedly refused to pass similar cap-and-trade limits on carbon dioxide emissions.

The U.S. Supreme Court issued an order in 2016 preventing the EPA rule from taking effect. In 2019, under the Trump administration, the EPA repealed the CPP, saying it exceeded EPA’s authority under the Clean Air Act. The EPA determined that the generational change rules fall under the “major issues doctrine,” which requires that agency decisions of major economic and political significance be clearly authorized by Congress.

A lawsuit followed, in which the DC Circuit of the Court of Appeals overturned the EPA’s repeal of the CPP. After another change of presidential administrations in 2021, the EPA returned to the Supreme Court to defend the CPP in West Virginia vs. EPA.

Chief Justice Roberts, joined by five other justices, wrote the court’s decision, finding that the Clean Air Act did not authorize the EPA to design the CPP program to shift power generation from fossil fuel-fired power plants to renewable energies. To reach this decision, the Court adopted the major issues doctrine, based on the principles of the separation of powers and legislative intent. The court endorsed much of the Trump administration’s EPA reasoning that repealed the CPP in 2019.

Administrative law transformed

Applying the major issues doctrine to this case, the Supreme Court noted that prior to 2015, the EPA had only imposed caps on regulated sources of emissions, rather than imposing a regulatory scheme to force a major change in the way electricity is generated on an industry. – wide base. The court also noted that the asserted authority of the EPA had broad economic and political significance. Therefore, according to the court, the EPA had to show “clear authorization from Congress” to design its generational change approach to limit carbon dioxide emissions.

The Supreme Court ruled that the EPA could not rely on the “vague statutory subsidy” of the Clean Air Act as authority for the CPP. While conceding that a nationwide transition away from coal-fired power plants may be reasonable, the court found it implausible that Congress intended to confer so much authority on the EPA when it amended the Clean Air Act in 1970. The court reversed the decision of the Court of Appeals. ‘ Judgment against the Trump administration’s decision by the EPA to repeal the CPP.

Justice Elena Kagan and two other justices dissented, noting that the Supreme Court had never used the term “major issues doctrine” in previous opinions. The dissent would have confirmed that the RPC was clearly within the statutory authority of the EPA. While well-reasoned, the dissent may have overstated its arguments when it concluded that the ruling effectively named the court, instead of Congress or the EPA, as the decision maker on climate policy.

West Virginia vs. EPA, will transform administrative law. Going forward, industries harmed by agency regulations are likely to ask the courts to strike down those regulations under the major issues doctrine.

The Supreme Court ruling also shifts the power to drive major policy changes from executive branch agencies to Congress. The question now is: will Congress act quickly to limit carbon dioxide emissions or specifically authorize the EPA to do so? Given the partisan discord in Congress, that seems unlikely.

Christopher R. Vaccaro Esq. is a partner at Dalton & Finegold, LLP in Andover. His email address is [email protected]