Supreme Court Digs into Statutory Details More than Standing or Nondelegation in West Virginia v. EPA

The Supreme Court heard oral arguments today. West Virginia v. Environmental Protection AgencyThis is the Supreme Court’s most significant environmental case. Although some warned of a Waterloo situation for the administrative states, this case was largely focused on how to interpret relevant Clean Air Act provisions. This is just my first reaction to the argument.

This case focuses on the authority of the EPA to regulate greenhouse gas emissions from the power sector. It is significant because nearly one third of all domestic greenhouse gases are produced by power plants. There were concerns before the hearing that this could result in broader changes to federal agency regulation. Particularly if Court relies on nondelegation issues or the major question doctrine to restrict agency authority. You can see the entire case (and the post linked to it) here.

During the argument that lasted more than two hours, justices were most concerned with how Section 111 of Clean Air Act (42 U.S.C. Section 7411, which regulates greenhouse gas emissions from power stations, is the source of authority under law. Clean Power Plan by Obama incorporated a broad interpretation of this language. This would have justified regulating greenhouse gas emissions across the entire system, to incite fuel shifting, and generation shifting. On the contrary, the petitioner states, and the coal companies prefer the Trump Administration’s narrower interpretation of Section 111, which allows only the imposition requirements at specific plants. Section 111 is about the best system for emission reduction and the imposition controls at every “existing source”. There was much debate over the way the language should read.

Through the entire argument, major questions doctrine was brought up repeatedly, but mainly as an input for the statutory interpretation inquiry rather than as a trailing horse to support the nondelegation theory. The argument that Congress lacked constitutional authority to give the EPA authority to establish emission standards for greenhouse gasses was not made by any justice. Instead of focusing on whether Congress delegated such authority to the EPA, we focused on whether it should do so and whether, due to the major question doctrine, the Court should avoid an interpretation that would substantial expand the EPA’s authority. For example, allowing the EPA system-wide emission cuts, rather than concentrating on individual plant reductions.

Also, there was no consensus about what the doctrine’s major questions should be. This includes whether the doctrine is an aid in resolving confusion or a wider presumption that regulatory authority cannot be delegated. The Court will need to address this issue in its final opinion. It could decide how this ruling affects other regulatory programs. Although I believe the petitioners will prevail, there are reasons to believe this case might produce a less favorable opinion.

Some respondents and the Solicitor General tried to convince the Court this case was not justiciable. This could be because petitioners don’t have standing to challenge lower court judgements or because the case has no merit because the EPA doesn’t currently enforce any regulations against petitioners. These arguments were not received well by the justices. Justice Gorsuch raised the standing question first, but there was very little discussion and only minimal resistance to petitioners’ arguments to defend their jurisdiction.

Justice Alito asked SG Prelogar a key question: Does there exist precedent that a stay makes a case moot? No. However, the Court’s liberals didn’t seem to be meaningfully more open to the justiciability issue. Justice Breyer challenged, among other things, SG Prelogar’s assertion that the D.C. Circuit’s decision doesn’t require the reimposition or modification of Clean Power Plan. Prelogar couldn’t identify any part of the D.C. Circuit’s decision to reject Justice Breyer’s reading. Prelogar suggested that he instead consult a subsequent EPA memo. West Virginia SG See hammered the point during rebuttal.

I suggested previously that the Court vacate the D.C. I had previously suggested that the Court should vacate the D.C. decision and remand it to agency for a fresh start. The petitioners would be able to address their concerns regarding the expansive language used by the lower courts. This will also help avoid trying to determine the exact limits of Section 111 with no regulation. However, it was not apparent that there was significant interest.

Surprisingly, the nondelegation doctrine was not given much attention in the nearly two hours of argument. It was only mentioned as an influencer on the application of the major question doctrine. I didn’t find this surprising, since the case had never been a significant vehicle for nondelegation. The majority of justices seem to agree, though this wouldn’t preclude Justice Gorsuch from issuing a separate opinion. While nondelegation might still be lurking in the background, it is not clear that the Court intends to take a more narrow reading of the statute language. At least in this instance.

Here are some other observations.

  • At the Supreme Court, female advocates remain a rarity. However, today, the Supreme Court’s four arguing attorneys were all women. West Virginia SolicitorGeneral Lindsay See, U.S. Solicitor General Elizabeth Prelogar, and Covington & Burling’s Beth Brinkmann (on behalf of respondent power companies).
  • Justice Sotomayor appeared to struggle to keep some technical details straight, which is an occupational hazard for many of us working in environmental law. The “CWA” is not in issue (but will be in another environmental case next autumn) and the ozone layer.
  • SG Prelogar stated that the Clean Power Plan’s emissions reduction goals had been achieved nationally and that states are not liable for any costs (and therefore no injury), as they can easily trade or the like in order to fulfill their emission reduction obligations. In other words she claimed that trading was costless and hassle-free, thus there is no transaction fee. This is quite an assertion.
  • Justice Breyer presented a hypothetical about the regulation for advertising “four-foot cigars smoked by hookahs”. This provoked a chuckle among one of his coworkers (almost certainly Justice Thomas). Justice Kagan noted that the hypothetical was not typical of how advocates respond to Breyer’s hypotheses. Brinkmann stated that it was “really useful.”
  • When can we expect the EPA to propose a new regulation governing greenhouse gas emission from power plants?” SG Prelogar replied that it was “this year” in the EPA’s plans.