Today the Supreme Court hears oral arguments in the case of West Virginia v. EPA.  The case centers on the EPA’s ability to regulate greenhouse gas emissions in the power sector. Given that the power sector is responsible for almost a third of U.S. energy-related CO2 emissions the court’s ruling could have a big impact on efforts to deal with climate change.

To help us better understand the case and what we can expect I reached out to the following legal experts:

• Craig N. Oren, Professor Emeritus of Law, Rutgers Law School
• Daniel Farber, is the Sho Sato Professor of Law at the University of California, Berkeley
• Dena Adler, Research Scholar at Institute for Policy Integrity at NYU School of Law
• Michael B. Gerrard, Director, Sabin Center for Climate Change Law, Columbia Law School

Between them, this group has over fifty years of experience teaching at law schools, clerking for State and U.S. Supreme Court Justices, leading advocacy efforts, working for the Energy and Commerce Committee of the U.S. House of Representatives, and litigating environmental law cases.

How did we get here?

In 2007, the Supreme Court ruled the EPA has the authority to regulate greenhouse gas emissions as part of the Clean Air Act.  This case will decide if the EPA has broad authority to do that or can only take limited actions.

As background for the case, Professor Oren explained, when the Trump Administration came in it implemented the Affordable Clean Power rule (ACE) which scaled back bigger efforts by the Obama Administration to cut carbon emissions in the power sector. In response, several states and environmental groups suited the EPA to stop this from happening.  The D.C. Circuit ruled against the Trump Administration and threw out ACE. The case before the Supreme Court is an appeal by West Virginia and several utilities of that D.C. Circuit court’s decision and will decide if ACE is valid.

Beyond the back and forth of administrations, there are broader legal issues to consider. States and the coal industry are arguing that the Court should apply the major questions doctrine. According to Professor Farber, “this is the theory the Court recently used to strike down the OSHA mask mandate. The major questions doctrine essentially says that Congress has to specifically authorize any really big, controversial rule.” In his view that would basically hamstring agencies in dealing with big societal issues like climate change.

Want can we expect

To help give a sense of how the court will rule, Farber said people should be listening for the following things to happen during the proceedings:

• Do any of the justices ask about the nondelegation doctrine, which is a constitutional rule that could undermine a lot of regulation?
• Do their questions tend to focus on the technical issues about the specific law in the case? Or do their question telegraph that they think the regulation is too big and controversial to be valid?
• Do any of them show any sympathy for the arguments that the issues in the case aren’t ripe for a decision since the Biden Administration hasn’t even said what kind of regulation it may seek to issue?

Professor Gerrard did think it would be noteworthy whether the justices keep their questioning to the meaning of the Clean Air Act or go beyond that to question other aspects of EPA authority, or even touch on the power of Congress to delegate to EPA as much discretion as it did.

In contrast, Dena Adler cautioned against reading too much into the oral arguments. However, she did say to keep an eye out for, “Any questions from justices regarding the appropriate scope of the major questions doctrine will also be of interest. Justice Kavanaugh has expressed interest in relying on a number of factors to identify a major question that the Court has not historically deemed determinative, or even necessarily relevant.”

During our discussions, Professor Oren raised the possibility that the court may not decide to rule on the case.  He explained that since the Biden Administration EPA says it does not intend to implement the ACE rule even if the Supreme Court holds it valid.  So, it really doesn’t matter anymore whether the ACE rule is valid or not. The Court has always held that its jurisdiction is confined to actual cases and controversies, and therefore might find the case moot and not decide the merits.”

As Adler points out that if they decide to do this it could still hear future challenges any program the Biden Administration puts in to cut power plant emission levels.

Decision Time

Given that the court can be unpredictable, rather than offer predictions our legal experts weighed in on how they would vote if they were on the court.  Here are their responses:

• I would vote to dismiss the case as moot. The case began as a challenge to the validity of the Trump Administration’s Affordable Clean Energy Rule. The Biden administration has said that it does not intend to implement this rule. Therefore, it no longer matters whether the rule is valid or not. Professor Craig Oren
• If I were on the Supreme Court, I would vote to rule that certiorari was improvidently granted — in other words, that the Court should not be taking up the case at this time because there is no real regulation on the table. They should wait until EPA issues its new rule replacing the Clean Power Plan. – Professor Michael Gerrard
• I would vote to dismiss the case for lack of ripeness since the agency hasn’t taken a definitive position and there is no immediate harm to the petitioners. Failing that, I would uphold EPA on the ground that the language is ambiguous, so that Trump EPA’s justifications for its approach were wrong as a matter of law. The Obama approach is the most reasonable way to implement the statute. – Professor Daniel Farber