What Does West Virgina v. EPA Mean for Environmental Policy? with Professor Dan Farber and Ken Alex

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West Virginia v. EPA

The U.S. Supreme Court issued its decision in West Virginia v. Environmental Protection Agency on June 30, 2022, determining (in a 6-3 ruling) that, without explicit congressional instruction, the EPA cannot curb emissions at existing power plants by forcing a change to renewable energy sources (as opposed to directing specific emissions reductions from the power plants themselves). Chief Justice Roberts, writing the majority, declared that mandating a switch to renewables is such a major shift that it falls under the “major questions doctrine.”  That doctrine – which is a creation of the Supreme Court – has not been fully developed, but has been presented as a limit on the power of the Executive Branch, requiring Congress to provide specific direction through legislation before the President may act.  What constitutes a “major question” and when it is to be invoked is unclear.  

The West Virginia case involved a regulation from the Obama-era that called for reduction of greenhouse gas emissions from coal fired power plants, which could take the form of replacement of those plants with renewable energy. That regulation was withdrawn by the Trump administration, which issued a regulation much more limited in scope. The Biden administration then withdrew the Trump-era regulation and is working on a new regulation. So, the Obama-era regulation at issue in West Virginia was not operative, which would normally make the case moot. The Supreme Court ruled, however, that because the rule could be reinstated, the case could proceed, underscoring the majority’s strong intent to create the major question doctrine.  The doctrine is presented as a check on executive power, but also represents a potentially significant expansion of judicial power. It is the Court that apparently will decide the parameters of what constitutes a major question, when and under what circumstances it will be applied, and when the President needs explicit authorization from Congress to take action.   

Though West Virginia v. EPA hinders EPA authority, it still leaves open several avenues for effective government climate action. The case does not touch on local and state government ability to regulate pollutants, and does not affect the EPA’s regulation of high-emitting sectors such as transportation. Additionally, this Court decision does not affect new power plants, only existing plants. Though it prevents the EPA from mandating renewable energy for existing power plants, the EPA can still require specific emissions reductions from individual plants. Finally, West Virginia v. EPA highlights the importance of passing effective congressional climate change legislation with explicit authority for the executive branch. West Virginia v. EPA is a further reminder that climate change cannot be fought without bold congressional action. 

For a more detailed discussion, we invite you to listen to the long version of this podcast on this website, and check out the links below.

Who is Professor Dan Farber?

Dan Farber is one of the nation’s most cited and influential scholars of environmental and constitutional law, and is faculty director of the Center of Law, Energy, and Environment at Berkeley Law. After law school, he clerked for Justice John Paul Stevens of the U.S. Supreme Court, giving him an intimate look into the workings of the nation’s highest court. His most recent book is Contested Ground: How to Understand the Limits on Presidential Power (UC Press 2021). Dan Farber is the Sho Sato Professor of Law at the University of California, a member of the American Academy of Arts and Sciences and a Life Member of the American Law Institute.

Learn More

West Virginia v. EPA: A Quick Explainer – Legal Planet 

Emerging Answers to Major Questions – Legal Planet

Opinion | The Supreme Court’s EPA Decision Is More Gloom Than Doom – The New York Times

The Supreme Court’s EPA Ruling Is Going to Be Very, Very Expensive – The Atlantic

West Virginia v. EPA and the Future of the Administrative State – Legal Aggregate – Stanford Law School


Short version

Prof. Farber: It’s an important case because these existing power plants, especially coal, but also natural gas, contribute a major share of US carbon emissions. We’ve gotta address those emissions and the Supreme Court clearly has made it more difficult to do that. 

Ethan: What does the Supreme Court’s decision in the West Virginia vs. EPA case mean for the future of US climate action? I’m Ethan Elkind, and this is Climate Break. You were listening to Dan Farber, professor at Berkeley Law. Even with the ruling against the EPA, Professor Farber holds a dose of optimism for emission regulations.

Prof. Farber: Nothing in the opinion casts any shade on other things EPA is doing, like regulating methane or regulating emissions from vehicles. I think that there are very likely things that EPA can still do for coal fired power plants. Fortunately the market is moving toward renewable energy, and I think that maybe in the end what saves us.  

Ethan: Professor Farber also says that the Court’s ruling now puts the pressure of passing climate legislation on Congress more than ever.

Prof. Farber: They probably could give pretty broad powers to EPA. At some point, Congress is just gonna have to face the reality of climate change and pass climate legislation

Ethan: To learn more about the Supreme Court’s decision in West Virginia vs. EPA, listen to the full interview at climatebreak.org.

Extended version

Ken: Hello and welcome to Climate Break. I’m Ken Alex, the Director of Project Climate at UC Berkeley. And today I’m very pleased to be joined by professor Dan Farber of UC Berkeley Law School. Professor Farber is one of the nation’s leading scholars of environmental and constitutional law. His work is among the most cited and influential in the country, and he also has a deep knowledge of the Supreme Court itself, having clerked for Supreme Court Justice John Paul Stevens. Dan’s most recent book is called Contested Ground: How to Understand the Limits of Presidential Power. So Professor Farber, Dan, thank you for joining Climate Break.

Prof. Farber: Great to be here. 

Ken: The Supreme Court last week issued probably one of its most important environmental decisions in a decade or more, called West Virginia versus EPA. And it also deals with the limits of presidential power, so right up your alley. I’m wondering if you could tell our listeners a little bit about the background of the case and what’s at stake.

Prof. Farber: I think the story really begins with an earlier Supreme Court decision, one by Justice Stevens–although long after I had been a law clerk, so I can’t claim any credit. That case was Massachusetts versus EPA and the Supreme Court held in that case that EPA had jurisdiction to regulate greenhouse gasses under the federal air pollution law, the Clean Air Act. 

So the next question was, how should EPA go about using the Clean Air Act to regulate? That’s actually pretty straightforward for certain kinds of emissions. It’s really straightforward for carbon emissions from cars and trucks. I mean, there are technical problems, but legally there’s a provision in the statute that just fits right in. And it also is relatively straightforward for new factories and new power plants. 

The tricky part though, is how to regulate emissions from existing power plants, and then maybe ultimately factories and other existing sources. And the problem is that the Clean Air Act was written pretty much with urban air pollution in mind when they were creating the provisions for regulating existing sources and those provisions aren’t really a very good fit with greenhouse gasses and climate change. So, as soon as EPA was told that they were supposed to regulate greenhouse gasses, they started going through the law, which is like 300 pages long, and trying to find good hooks where they could have a legal basis for regulating. The one they settled on was something called section 111(d) which was pretty obscure at the time. It had only been used maybe a half dozen times and not in really high profile regulations. But EPA decided, after looking at a variety of different provisions, that this one was the best bet. Under the Obama Administration, EPA issued what’s called the Clean Power Plan. The Clean Power Plan basically tells states that they need to shift the energy sources used to power their electricity grids, and they need to shift them away from coal and–at the other end–toward renewable energy.

So, really the plan is an effort to sort of transform state energy systems – “transform” is a little strong because it was sort of gradual transformation, and the initial steps that the agency took in the plan were not very rigorous. But nevertheless, the idea was to look beyond the individual power plant with its smoke stack and boilers or whatever. And instead, sort of look at the power grid in the state as a whole. The EPA’s legal basis for doing that was that  section 111(d) says that EPA should use the best system to reduce emissions. And so a really simple way of looking at the legal issue is what is the system? Typically in regulating pollution, EPA looks at individual pollution sources, again, like maybe a power plant and they say, for example, to reduce your sulfur dioxide emissions, you need to either switch to low sulfur coal, or you need to install scrubbers. And scrubbers are sort of the answer to a bunch of different pollution problems. An incomplete answer, by the way. I mean that they are still not at all clean. But what EPA was doing here was much different. And the reason is that there at present, we don’t have an affordable technology that you could install in the smoke stack to get rid of the carbon dioxide. We might have one someday. We maybe could use that technology to get rid of some of the emissions from the smokestack, but we’re just not there. And so if you want to reduce the amount of carbon emissions from coal plants, basically – this is not 100% accurate, but pretty close – you gotta get them to burn less coal and you gotta get the power system to use other power sources. And that’s what EPA was trying to do. 

Ken: One of the unusual aspects of the case is that the Supreme Court seemed to go far out of its way to take the case, because the Clean Power Plan, which you mentioned, isn’t actually an operation anymore. As you said, it was done in the Obama Administration, but the Trump Administration withdrew it and the Biden Administration did not put it back into operation. So, am I right in saying that this is pretty unusual for the Supreme Court to have kind of grabbed this case? 

Prof. Farber: You could say technically the plan isn’t quite dead, the Clean Power Plan, but really close. And normally you would expect the Supreme Court to wait to find out what the Biden Administration wanted to do to replace the Clean Power Plan and the Trump plan, before jumping in to give a legal opinion. I think this is part of a trend where they seem to be eager to decide certain issues and they just jump at the first opportunity. And it’s not a trend that I think we should be happy about. But it was also a really clear signal in this case that the Clean Power Plan was doomed. They didn’t go through all this just so they could turn around and uphold it. And I don’t think anyone expected the EPA to win the case. 

Ken: So having said that and, you know, starting off with the idea that this is such an important case, why is it an important case and what has the Supreme Court decided to do? 

Prof. Farber: Okay. So. It’s an important case because these existing power plants, especially coal, but also natural gas, contribute a major share of US carbon emissions. And so, if we’re gonna meet our targets for the Paris Agreement, or just generally do something about climate change, we’ve gotta address those emissions and the Supreme Court clearly has made it more difficult to do that.

If the court had ruled the other way, EPA would’ve had all kinds of possibilities, sort of like the California Air Resources Board at the state level, they would’ve had a lot of flexibility in trying to come up with good solutions to cut emissions. As it is, their options are more limited, and they won’t be able to do as much. I think they can still do some things, so it’s not a complete loss of authority, but it certainly makes it harder. 

The other thing about the case that’s significant, and this goes to the presidential power point that you mentioned earlier is that the Court used something it calls the Major Question Doctrine as the basis for striking down the Clean Power Plan. The Major Questions Doctrine is something that’s sort of gradually grown out of, you know, just like a small seed maybe 20 years ago, and it’s now a significant threat to a lot of different kinds of regulation.

The Major Questions Doctrine says that there are some issues that are so big that Congress either needs to decide the issue by itself, or be really clear that it’s turning the issue over to an agency to decide. And if it’s not really clear, the agency loses. The big questions have been, and I guess still are to some extent, how do you decide what makes it a major question and then how clear does the evidence have to be?

There’s a lot of dispute among administrative law scholars who specialize in this stuff about what to think about the West Virginia case in terms of the Major Question Doctrine. So some people are really, deeply concerned that the court has applied the doctrine in such an important setting. And they are afraid that the doctrine will now sort of metastasize and get in the way of all kinds of other government regulations. Basically, anytime a majority in the Supreme Court feels that they’re both bad and important. 

I belong to a maybe smaller but more optimistic group. I think Chief Justice Roberts in this case makes an effort to put some guardrails around the doctrine. We don’t know if those guardrails will hold in the future. But I think he’s applying it in a way that’s more restricted. He emphasizes that this was a very obscure provision, that EPA’s action was unprecedented, it had never used even this provision or in this way and had not really done anything similar to this in other air pollution regulations, at least in the Court’s opinion, and that Congress had repeatedly rejected legislation that was at least somewhat similar to the Clean Power Plan.

So, the way I would like to read that is to say that something is a major question when an agency jumps out of its usual regulatory practices and its usual area of regulation, and tries to do something different. That is as opposed to just controlling emissions. The Court says EPA was trying to basically take over running the electrical grid, and that’s not EPA’s job. So I would like to view it as really an injunction for agencies to stay in your lane. But if you’re doing that, I think agencies can still do big things. 

Ken: Well, let me, let me pose it this way. So in Massachusetts versus EPA, which you mentioned earlier, the Supreme Court in a five to four ruling said that, the Clean Air Act for mobile sources, meaning cars and trucks on the road, that the Clean Air Act covered greenhouse gas emissions, not just what we call criteria pollutants, like NOx and SOx. So what I wanna ask you is if the West Virginia case came first, and now we’re faced with the Massachusetts versus EPA case, do you think that the question of whether EPA could control or limit greenhouse gas emissions from mobile sources? Would that be a major question? 

Prof. Farber: Nice hypothetical. 

Ken: Yeah, you can use that next year on your exam. 

Prof. Farber: Um, I mean, it’s a little hard to answer, because I think it’s quite clear that this court would never have voted the same way in Massachusetts versus EPA, even without the Major Question Doctrine. I would argue no, that it shouldn’t preclude EPA from regulating greenhouse gasses. And the reason is that, especially with mobile emissions, it would really be engaging in a very familiar exercise of trying to reduce the emissions from individual sources, by, in this case, making the sources more fuel efficient. And I think that is within the bounds of what it has done with other regulations of vehicles. So I would argue that the doctrine would not apply in that case, but I don’t think it’s crystal clear. I mean, I think there’s going to be more of a question in the future when regulatory agencies try to regulate in a new area or regulate a new technology, and it’s not clear how the lower courts are gonna respond to West Virginia versus EPA.

Ken: So this was characterized to some extent as a separation of powers case that if Congress doesn’t speak to the issue, pretty specifically on a major question, that the Executive Branch, meaning the president, doesn’t have the authority to act. His agencies can’t do regulations on the issue. But isn’t there also an element that this gives the Supreme court, the third branch of government, an inordinate amount of authority and power to determine what is a major question, which, you know, you’re trying to put some parameters on, or the Chief Justice may have tried to do. What do you think about the Supreme Court’s role going forward or even the District Court’s role? 

Prof. Farber: I think the Supreme Court is definitely not shy about making its views known, and maybe you could say throwing its weight around these days. I think you could see this Major Question Doctrine as being kind of at the opposite end from the Chevron Doctrine. The Chevron Doctrine allows agencies leeway to interpret the laws that they implement as long as the interpretations are reasonable. And that doctrine is based very clearly on a view that administrative agencies are really active partners in making laws work and adapting them to new circumstances and resolving tensions within the law or filling gaps. Rather than simply passive servants who use the dictionary and try to figure out just what the law means. And the clear error aspect of the Major Question Doctrine really takes an opposing view that at least with really big issues, the agency isn’t supposed to play that kind of junior partner to the legislature role, that it’s really the legislature Congress that has to decide on these big questions, at least decide specifically that it wants the agency to regulate in those areas. 

And I think there is a separation of powers basis for that, an idea that big policies should be made by Congress, not by the Executive Branch. But the Court also says it’s partly rooted in common sense that it’s just not reasonable to assume that Congress meant to give EPA power to revamp the electric power sector pretty substantially based on this tiny little provision buried in the middle of a clean air act that nobody even had heard of before this.

And I think Roberts is actually kind of eager to deemphasize the separation of power as part of it, compared to Justice Gorsuch who writes a separate opinion that really goes to town on the possible constitutional issues in the case, and about how expensive the Clean Power Plan would be and a bunch of other stuff. And one of the things that makes me a little hopeful about this case is that Justice Gorsuch only got one other justice to sign on to his separate opinion, which may mean that, at least, another one or two justices at least agree with Roberts, that the court needs to be very careful with this major questions doctrine because of the risk that you indicate that it can be used in any case for anything, unless they’re very careful about trying to put up some guardrails. At least that’s my semi-optimistic view.

Ken: I appreciate that. The Gorsuch concurring opinion is interesting. He lays out seven or eight criteria for a very developed concept of what a major question might be. It struck me that he might have been trying to write the majority opinion and didn’t get enough votes. Given your Supreme Court experience, what do you think? 

Prof. Farber: I think it would be pretty usual for him to be assigned the majority opinion in a situation where he had so little support for his view. And usually in that situation, at least some people will just hang on with the, you know, with the justice who is originally assigned the opinion, just to avoid embarrassing them. If they know that it’s no longer gonna be a majority opinion, you know, they may just leave their name in anyway, so that it doesn’t look like, you know, this person wrote a majority opinion and got no support. So I’m kind of inclined to doubt that. Um, I do think he really wanted to write the majority opinion and even if he wasn’t assigned the majority opinion, it looks like he was gonna try to write it anyway. I think probably more likely Roberts gave himself this opinion from the beginning. Because it’s the Chief Justice who assigns opinions when they are in the majority. I can’t be positive of that. I mean, the majority opinion for a Supreme court opinion these days isn’t that long, so maybe it was written, you know, later. On the other hand, there was so much going on with the abortion case and religion case and a whole bunch of other things that it could just be that Roberts didn’t have enough time to write one of those 70 or 80, elaborately footnoted, majority opinions that the court issues sometimes. Whichever way it is though, I’m very glad that Gorsuch and his view isn’t the majority opinion in the case. 

Ken: Well, since you’ve given us a dose of optimism here, what’s your feeling about what can still be done under the Clean Air Act, under section 111?  

Prof. Farber: So first of all, nothing in the opinion casts any shade on other things EPA is doing, like regulating methane or regulating emissions from vehicles. And I think that’s important. In terms of existing plants, I think that there are, very likely, things that EPA can still do for coal fired power plants when they burn the coal, they have to add usually natural gas, sometimes some other fuel. And at least some studies I’ve seen indicate that they could cut the carbon emissions from coal plants about in half, somewhere in that vicinity, by using that tool. So that is still not as much as you would ideally like, but nevertheless, a significant contribution. I think trying to figure out what to do about natural gas plants is more difficult. And I’ve seen some speculation about approaches the EPA could take, like for example, requiring them to use biogas or hydrogen as well as natural gas. But I don’t really have a clear sense of how realistic those options are. I just don’t know enough about the engineering and the economics involved. Fortunately the market is moving toward renewable energy, and I think that maybe in the end what saves us. 

Ken: Yeah, I think in some ways the coal fire piece of this is somewhat less important. There are no new coal plants being built in the US. A lot of them are converting at least to natural gas. As you say, hydrogen may be a replacement as well. So there at least seems to be on the narrow question of power plants maybe not the biggest harm. But in terms of what constitutes a major question, I don’t know if ironic is the right word, but the issues that have the most consequence are the ones most likely to be major questions and the ones where you wanna have the ability to act. So, I have some concerns going forward that the Major Question Doctrine is a way for the Supreme Court to preclude action by the executive branch. 

Prof. Farber: Actually, in terms of application of this doctrine, I’m more disturbed by the COVID cases in which the Supreme court said that the CDC couldn’t ban evictions, couldn’t have an eviction moratorium to keep people from getting COVID. And the Court said that OSHA couldn’t have a vaccine mandate in the workplace, because that exactly fits where you were talking about, right? A situation where action is urgently needed, where we have these sort of vague statutes that maybe weren’t written from, you know, nobody was expecting a pandemic when they wrote the statute, and the Court is not being sympathetic to the idea that the Executive Branch needs to step into the breach of when we have these crisis situations. I suspect that in a future crisis, we’re gonna be really sorry that the Court has construed emergency authority so narrowly, 

Ken: Well, let me ask you maybe, this will be my last, at least big question for you is, um, you’ve done a lot of work looking at the responsive government to disasters and the use of emergency authority. At this point, is there any advantage or any potential for the president to declare a national emergency around climate and would that provide any additional authority? 

Prof. Farber: I think in theory, at least it would provide some additional authority. I don’t think it would be a game changer in terms of the government’s authority, but it might allow them to do some things in terms of prioritizing renewable energy, or in terms of maybe putting some of the brakes on oil and gas development. But I have to say that I would be very worried at this point that the Supreme Court would conclude that extending the national disasters act or the national emergency act to include climate change would be a major question. I could imagine they could be resistant to going in that direction. Toward the end of the opinion, the court says a decision of this magnitude can only be made by Congress or by an agency operating with clear authority from Congress. And that does suggest that if Congress wanted to pass climate change legislation, they probably could give pretty broad powers to EPA, as long as it was at least sort of generally clear what specific problems EPA was supposed to deal with, and they were given some kind of standard for their regulations. That’s an idea that Gorsuch would hate. And maybe it’s only theoretical because Congress doesn’t like to, these days, to pass simple laws that establish general principles and leave the details to someone else. But I do think that that is somewhat encouraging in terms of what Congress could do. I think everyone has known from the beginning that ultimately we need legislation. No matter how generously you interpret EPA’s powers, they’re not broad enough to do everything we need done and Congress at some point is just gonna have to face the reality of climate change and pass climate legislation, if we’re gonna continue to make progress past, say our 2030 goals. 

Ken: Well, that seems like a perfect place to end, with Congress and stasis. Thank you so much, Professor Farber. This is Climate Break. If you want more please visit our website at climatebreak.org. Thank you again.

What Does West Virgina v. EPA Mean for Environmental Policy? with Professor Dan Farber and Ken Alex