Standing in West Virginia v. EPA Revisited

The Supreme Court will be hearing oral arguments in the case on Monday, February 28. West Virginia v. Environmental Protection Agency, a question about the authority of the EPA to regulate greenhouse gases emissions from power plants. The Solicitor General, along with some respondents, argues that the Court does not have jurisdiction because petitioners are not able to challenge D.C. Circuit’s decision. They argue that there is no regulation that the EPA seeks to enforce and that petitioners don’t suffer any harm that a positive Court decision would remedy.

I felt it worthwhile revisiting the matter now that petitioners have responded (available here).

D.C. Circuit’s ruling invalidated Trump Administration’s adoption of Affordable Clean Energy. AndIts repeal of Clean Power Plan. To establish standing, plaintiffs must prove that the CPP’s reimposition would result in injury. The majority of the nation is meeting the CPP emission reduction targets. However, not all states have achieved this. It is enough for petitioners to establish standing.

Respondents reply that there is no risk to petitioners from the CPP as the Biden Administration doesn’t want to impose Obama Administration rules and the D.C. Circuit suspended its mandate in order to keep the CPP from being reimposed. While the stay protects petitioners for now, I don’t think it is enough to deprive the Court Article III authority when the Court mandates that the Court adopt regulatory restrictions.

The case could be stayed, but this would mean that it should be dismissed. A similar disposition could redress petitioners’ injuries and relieve the Biden Administration any responsibility of conforming to the D.C. Circuit’s judgement (and, incidentally was suggested as a possible disposition).

The Court may not decide to go to the merits. I believe the future is grim for the EPA’s authority on greenhouse gas emissions in the power sector. The Clean Air Act and the relevant provisions did not address greenhouse gas emissions. They were also written without the intention of authorizing energy-system-wide measures like the CPP. According to Circuit opinion. It may be a good policy idea to use these provisions in order to lower the emissions of greenhouse gases from power sectors. However, the question is whether this is legal.

It is not a common practice for the Court to accept creative attempts to create new wine from old bottles. While the Court acknowledges that Congress must expressly authorize power to address important policy questions, the majority of Court members are reluctant to access previously untapped regulatory resources in obscure and rarely-used regulatory provisions. This would indicate that the petitioners will prevail, unless there is a surprising outcome.