The recent SCOTUS decision regarding Roe v. Wade has generated a lot of discussion about how radical the Court might become. As a result, my Twitter feed (and inbox) has filled up with questions about the upcoming case: West Virginia v. EPA. There are plenty of claims that the Court is just chomping at the bit to dismantle the EPA’s ability to regulate anything.
That’s … not correct. So here I emerge from working in the coal mines to discuss why.
TLDR:
The whole thing is hypothetical — the EPA is not doing any of the things that West Virginia wants to stop it from doing. An adverse SCOTUS decision will limit future actions but change nothing in the here-and-now.
Slightly longer version:
In 2007, SCOTUS ordered the EPA to regulate carbon emissions under the Clean Air Act. The Obama administration interpreted the Clean Air Act to allow the EPA to regulate the power industry as a whole, rather than just give orders to individual plants. This was (mostly) unprecedented and attracted lawsuits. If SCOTUS finds for West Virginia, then the EPA will lose the power to use the Clean Air Act of 1970 to mandate cap-and-trade systems across the United States. That would be a bad thing, given as Congress is a mess. But it would not overturn the existing system of regulation and it would not hamstring a future Congress. In fact, since the EPA is required to consider CO2 emissions, it would open the door for the executive branch to order plants to do super-expensive stuff like, say, install carbon capture systems. And that, my friends, is why the heavy hitters in the power industry support the EPA and not West Virginia.
Long version:
The story of how the EPA came to regulate carbon starts in 1999, back when the sun shined bright and the world somewhat resembled normal. In that year, the International Center for Technology Assessment (ICTA) petitioned the EPA to regulate motor vehicle greenhouse emissions under Section 202 of the Clean Air Act. In 2003, the EPA said “no.” So twelve states sued, and in ’07 the Supreme Court ruled 5-4 for Massachusetts in Massachusetts v. EPA. The Bush administration slow-walked its compliance, issuing Executive Order 13432 to require the EPA regulate carbon dioxide from planes, trains and motor vehicles. The idea was that this would eat up time and stop the EPA from writing more comprehensive rules.
The Obama administration, not surprisingly, wanted more comprehensive regulations. Now, it also slow-walked things, in part because it wasn’t clear that Congressional action was dead until the 2010 midterms and in part because writing new administrative rules is (rightfully, I think) a slow and painful process. In ’12, it got around to proposing a rule that would require new power plants of any type to admit no more carbon per MWh than the best natural gas plants. And in ’15, it finally got around to issuing what became known as the Clean Power Plan (CPP).
The CPP was complicated, so I’ll boil it down to basics. The EPA determined how much each state could reduce CO2 emissions by 2030 by using existing technologies. Each state was then allowed to figure out how to get to its 2030 target however it liked. In practice, that meant cap-and-trade.
Of course, this is America, so of course the EPA got sued over its response to a lawsuit. In the interim, Donald Trump won the presidency and cancelled the CPP. (That was not as administratively easy as the above sentence implies, but let me stay out of that thicket for now please!) The administration developed a new plan that basically ordered coal plants to burn coal at higher temperatures. I shock no one by saying that it wouldn’t do a lot to reduce emissions.
Meanwhile, however, the court case shambled along like a zombie. And now the Supreme Court is deciding. The EPA’s strongest argument is simply that since the CPP is long gone, West Virginia doesn’t have standing. (Coal companies support West Virginia’s stance, but their standing is tenuous.)
The second strongest argument hinges on the strength of what’s called the “major questions doctrine.” That doctrine holds that the executive cannot use vague statutory language to slip through major policy changes. The doctrine first showed up in ’94, but it’s best explained with Antonin Scalia’s colorful language from 2014: “Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.”
West Virginia is basically arguing the EPA simply never has regulated emissions “beyond the fenceline.” So shoehorning in a full-fledged cap-and-trade system is just too big a change to be hung on the Clean Air Act’s vague language. The counterargument is simply that the EPA isn’t requiring cap-and-trade; it’s just setting broad targets and letting state governments decide how to meet them.
Ironically, the power companies support the EPA. (The link goes to their brief; no secondary sources here!) From their point of view, more flexibility is better than less. Thus you get a rogue’s gallery of evil capitalists arguing in favor of letting the EPA set targets and giving them the ability to meet them in the least costly way. (Con Ed, Exelon, National Grid, PG&E, and Puget Sound Energy, to be specific.)
So what’s at stake? Directly, nothing. The CPP never went into effect, and the country met all of its targets anyway because technology advanced. Indirectly, not all that much: the major questions doctrine is already settled law. The real worry is that by taking the case at all, SCOTUS is doing something bizarre, since it really isn’t clear that any of the parties have standing.
There are legitimate fears that SCOTUS might radically undercut the entire American regulatory regime. Justice Gorsuch, in particular, has expressed support for some revolutionary stuff. But this case really isn’t it.