EHS Administration, Regulatory Developments

SCOTUS Review of EPA Authority to Regulate Greenhouse Gas Emissions

All eyes concerned with greenhouse gas (GHG) emissions are on the U.S. Supreme Court (SCOTUS) as regulated industry, the EPA, states across the nation, and environmental activists anxiously await the showdown scheduled to occur on February 28, 2022. On that date, SCOTUS will hear arguments in the West Virginia v. EPA case, which consolidates with three other cases: Westmoreland Mining Holdings v. EPA, North Dakota v. EPA, and North American Coal Corp v. EPA.

The case calls upon SCOTUS to consider whether the U.S. Constitution gives Congress the authority to delegate broad regulatory authority to the EPA “to regulate greenhouse gas emissions in virtually any industry, so long as it considers cost, non-air impacts, and energy requirements,” states Oyez.


In 2007, SCOTUS ruled that the Clean Air Act (CAA) requires the EPA to regulate GHGs in Massachusetts v. EPA.

The Obama administration’s Clean Power Plan (CPP) set “flexible and achievable standards to reduce carbon dioxide emissions” that included “carbon pollution reduction goals for power plants and [enabled] states to develop tailored implementation plans to meet those goals. …”

“Soon after, 18 of the 50 US [states] joined a legal challenge against the emissions limits,” reports Power Technology. “Led by West Virginia politicians, the legal case said that the Plan gave the EPA massive power to reshape the US economy.  Opposers often say that state governments should decide emissions limits, not federal agencies. … Under former President Donald Trump, these legal challenges paused enforcement of the Clean Power Plan. Trump then ordered a review of the Plan, removed funding for it, and later passed legislation undermining it. His Affordable Clean Energy (ACE) rule gave priority to low-cost power generation, with significantly less emissions regulation.”

However, in January 2021, a divided D.C. Circuit Court of Appeals sent the Trump administration rule back to the EPA’s drawing board, stating the rule was devised through a “tortured series of misreadings” of the CAA, reports Grist. This left it up to the Biden administration to create a new rule.

Legal arguments

One of the challengers in this case—the North American Coal Corp.—“acknowledged that the issue of climate change and how to address it has ‘enormous importance,’ but the company stressed that ‘[t]hose debates will not be resolved anytime soon,’” states the SCOTUS blog. “What the court should resolve, it continued, ‘as soon as possible is who has the authority to decide those issues on an industry-wide scale — Congress or the EPA.’ Unless the justices weigh in, the company warned, ‘these crucial decisions will be made by unelected agency officials without statutory authority, as opposed to our elected legislators.’

“The Biden administration told the justices that there was no need for them to step in now, because the [CPP] ‘is no longer in effect and EPA does not intend to resurrect it.’ Instead, the government explained, it intends to issue a new rule that takes recent changes in the electricity sector into account. ‘Any further judicial clarification of the scope of EPA’s authority,’ the government suggested, ‘would more appropriately occur’ after the agency has actually issued the new rule.”

No merit

Basically, the EPA’s legal argument is that the case has no merit because you cannot file a case challenging a rule that does not currently exist.

In a brief filed with SCOTUS on the case, environmental, clean energy, and public health groups argue that the petitioners’ claims are without merit, states an Environmental Defense Fund (EDF) article analyzing the case.

This brief says, “[The Clean Air Act of 1970] established a comprehensive regulatory framework to address not only the dangerous air pollutants identified at that time, but also to equip EPA and states with tools to address new air pollution dangers and to embrace evolving pollution control techniques. … For this purpose, Congress built in provisions to ensure the statute’s continued effectiveness over decades, including technology-forcing mechanisms to spur innovation, requirements for EPA to periodically review and update standards, and the duty to list and regulate additional pollutants when their dangers became apparent.”

This issue was already addressed in American Electric Power v. Connecticut, according to the brief.

“This Court has already determined that Section 7411, a core provision of the Clean Air Act, ‘speaks directly’ to power plants’ emissions of carbon dioxide; gives EPA authority to decide ‘whether and how’ to regulate those emissions; and assigns EPA the ‘complex balancing’ task required to determine the best pollution-control systems in the context of a technical and complex record for particular industrial categories …

“Section 7411 does not contain a sell-by date. To the contrary, Congress designed this provision (and the Act as a whole) to equip EPA with tools to address new pollution problems and to impose new regulatory requirements over time.  Indeed, Congress specifically tasked EPA with periodically reviewing and updating its best system determinations and emission limits at least every eight years.  Applying Section 7411 to achieve reductions based on evolving systems of emission reduction is thus a feature, not a bug, of the provision.”

Petitioners claim that EPA authority stops at the regulated industries’ fence lines, says EDF. Respondents argue that this claim is not supported by statute.

“[These claims rest] on a novel construction that Section 7411 restricts the ‘best system of emission reduction’ to measures implemented ‘to and at’ the source.  That restriction finds no support in the statute. … Moreover, this restriction would unreasonably bar commonplace, cost-effective trading and averaging measures among regulated sources, forcing EPA (and states and industry) to rely on emission-reduction techniques that are both more expensive and less effective.”

Major questions doctrine

The petitioners’ argument in the case relies heavily upon the “major questions doctrine,” which “holds that courts should not defer to agency statutory interpretations that concern questions of ‘vast economic or political significance,’” explains an H2O casebook. “[SCOTUS] justifies this limitation with the non-delegation doctrine. According to [SCOTUS], courts are supposed to interpret ‘major’ legal questions, not administrative bureaucrats.”

According to the petitioners in this case, laws passed by Congress must have “unmissable clarity” when conferring authority upon government agencies to regulate matters with major economic or political significance.

“Applying that rule, the challengers argued that the [CPP] is legitimate only if the [CAA] specifically authorizes the precise methods of reducing carbon dioxide emissions that the rule prescribes,” states a case summary by the Constitutional Accountability Center (CAC). “The challengers further claimed that [SCOTUS] must apply this ‘major questions’ rule as a way of enforcing a constitutional prohibition on laws that delegate legislative authority to agencies—the so-called ‘nondelegation doctrine.’”

The CAC has filed an amicus brief with SCOTUS in this case, arguing long-standing Constitutional law interpretation.

“As the brief explains, at the time of the Founding, legislative authority was understood to be inherently delegable,” states the CAC article. “The British Parliament and other legislatures across the Anglo-American world had a long tradition of delegating broad discretionary rulemaking authority to agents, who were not regarded as impermissibly ‘making law’ when they exercised that authority. Consistent with theory and precedent, legislative delegations were a pervasive feature of state governance in America, both before and after Independence.

“As we further explain, the ratification of the Constitution did not introduce new restrictions on delegation. Although the Constitution divides power among three branches and assigns all ‘legislative powers’ to Congress, nothing about that division requires limits on Congress’s power to delegate rulemaking authority to executive agencies, so long as Congress retains ultimate control over the legislative process. Furthermore, the debates surrounding the Constitution’s drafting and ratification betray no concern about this type of legislative delegation. … The Constitution’s original meaning, in sum, provides no basis for a strict nondelegation doctrine or its enforcement through a ‘major questions’ rule.”

CAA Section 111

This section of the CAA directs the EPA to establish emissions standards for stationary sources of air pollution that “may reasonably be anticipated to endanger public health or welfare.”

“Section 111(b) details EPA’s authority to regulate new and modified sources,” states Structuring Power Plant Emissions Standards Under Section 111(d) of the Clean Air Act—Standards for Existing Power Plants, a 2013 white paper by M.J. Bradley & Associates, LLC. “Section 111(d) establishes a process for EPA and states to regulate existing sources.”

Legal analysts believe SCOTUS will utilize this case “to figure out what the boundaries are for Section 111(d) of the Clean Air Act,” said Brittany Pemberton, an associate at Bracewell LLP, in a January 7, 2022, National Law Review podcast.

Legal players

SCOTUS has a mountain of legal paperwork to review in this case, as there are so many parties and interested participants. The list of briefs filed in this case is extensive.

Petitioners’ briefs

  • Basin Electric Power Cooperative, Respondent in Support
  • National Mining Association, Respondent in Support
  • Westmoreland Mining Holdings Opening Brief, Petitioner
  • West Virginia et al., Petitioner
  • North American Coal Corporation, Petitioner
  • America’s Power, Respondent in Support
  • North Dakota, Petitioner


Briefs filed on behalf of respondents include:

  • Power company respondents: Consolidated Edison, Inc.; Exelon Corp.; National Grid USA; NY Power Authority; Power Companies Climate Coalition; and Sacramento Municipal Utility District
  • EDF and other NGO and trade association respondents: American Lung Association; American Public Health Association; Appalachian Mountain Club; Center for Biological Diversity; Chesapeake Bay Foundation, Inc.; Clean Air Council; Clean Wisconsin; Conservation Law Foundation; EDF; Environmental Law and Policy Center; Minnesota Center for Environmental Advocacy; Natural Resources Defense Council; Sierra Club; Advanced Energy Economy; American Clean Power Association; Solar Energy Industries Association
  • Federal respondents: the EPA, the Department of Justice (DOJ), Solicitor General
  • States and municipalities: the states of New York, California, Maine, Colorado, Maryland, Connecticut, Massachusetts, Delaware, Michigan, Hawaii, Minnesota, Illinois, Nevada, New Jersey, Vermont, New Mexico, Virginia, North Carolina, Washington, Oregon, Wisconsin, Pennsylvania, and Rhode Island, as well as D.C., the city of Boulder, Colorado; the city of Chicago, Illinois; the city and county of Denver, Colorado; the city of New York, New York; the city of Philadelphia, Pennsylvania; the city of Los Angeles, California; and the city of South Miami, Florida

Amicus briefs

There have been more than a dozen amicus curiae briefs filed in this case. The term “amicus curiae” literally translates to “friend of the court” and is used for briefs filed by people or groups that are not parties to the lawsuit but that have a strong interest in the case.

Links to all briefs can be found on the EDF CPP case resources website.

History in the making

This case “could well become one of the most significant environmental law cases of all time,” states Jonathan Adler in an article by The Volokh Conspiracy.

“Given the range and wording of the questions presented, the Court will have the ability to address the scope of EPA’s authority in a narrow, technical way (relying on the Clean Air Act’s text) or in a broad way, focusing on whether and how Congress may delegate broad regulatory authority to federal agencies, or somewhere in-between,” Adler says.

SCOTUS’s decision in the matter is expected by summer 2022 and could have far-reaching implications, as the decision could place “new limits on Congress’ ability to delegate authority to all regulatory agencies,” states the SCOTUS blog.