Indefinitely Wild

In West Virginia v. EPA, the Supreme Court Will Decide Whether We Act on Climate Change

The federal government’s authority to regulate greenhouse-gas emissions is at risk, as right wing Supreme Court justices rewrite American laws


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Update: June 30, 2022, 8:15 A.M.: On Thursday, the Supreme Court ruled in favor of West Virginia, restricting the EPA’s ability to regulate carbon emissions.

The Supreme Court is expected to issue its ruling on West Virginia v. EPA this week, potentially deciding the future of the federal government’s ability to limit the effects of climate change—or even to address the looming climate disaster at all. Here’s what you need to know. 

What’s at Stake?

According to the United Nations Intergovernmental Panel on Climate Change, it’s now too late to avoid the disastrous impacts of climate change. Humanity as a whole must instead adapt to them, while simultaneously eliminating greenhouse-gas emissions in the hopes that we don’t make the now inevitable climate disaster even worse. 

West Virginia v. EPA challenges the Environmental Protection Agency’s (EPA) authority to regulate the carbon emissions of fossil-fuel-burning power plants under the Clean Air Act. In doing so, the case also threatens the federal government’s ability to write and enforce any emissions-related regulations. 

No country has contributed as heavily to climate change as the United States. If this ruling limits federal regulation of climate-change-causing emissions, it could short circuit global attempts to limit the climate disaster and effectively condemn humanity to a bleak future on a rapidly warming planet. 

A lot is at stake here, to put it lightly. 

What’s Being Argued?

The big question here is who has the authority to write regulations around power plant emissions: federal agencies or Congress itself. 

The lawsuit’s a little complicated. With the passage of the Clean Air Act in 1970, Congress delegated authority to write and enforce air-pollution rules to the EPA, which is part of the Executive branch. It’s the EPA’s job to employ experts and coordinate rule making, with both the industries it regulates and state governments, to ensure the rules it creates are fair, enforceable, and achieve goals set forward by that original act or subsequent legislation. But because the Clean Air Act was written 52 years ago, before climate change was widely understood, it makes no mention of carbon emissions. 

In 2015, the Obama administration issued the Clean Power Plan, which was an attempt to bring U.S power plants in compliance with goals outlined by the Paris agreement, by reducing their carbon emissions over time. The lawsuit in question argues that that rule should be invalidated, because the CAA makes no mention of carbon emissions, and the plaintiffs say that it should be up to Congress, not the EPA, to write new rules that regulate those carbon emissions.  

That’s a little odd, because the Clean Power Plan never went into effect, and it was repealed by the Trump administration and replaced by the Affordable Clean Power rule in 2019. Last year the District of Columbia Circuit Court invalidated that rule, and the Biden administration has yet to write a new one (it’s waiting to hear the outcome of this case first). So the plaintiffs are suing over a seven-year-old rule that never took effect and is no longer on the books. 

Or, perhaps more notably, the Supreme Court chose to take up a case about a seven-year-old law that never went into effect and is no longer on the books. A case in which no harm can be demonstrated, seemingly invalidating any arguments of standing. And that indicates to SCOTUS watchers that members of the court are eager to issue a ruling on the subject of delegation of congressional authority on climate-change regulations. Given this court’s enthusiasm for throwing out established precedent in favor of achieving longstanding right wing political goals, that’s concerning. 

“In that sense, this seems like a power grab,” Bethany Davis Noll, executive director of the State Energy and Environmental Impact Center at New York University School of Law, told E&E News. 

Who Brought the Lawsuit? 

While the case has been condensed to a lawsuit filed by West Virginia, it encompasses challenges originally brought forth by 20 Republican attorneys general from Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming, as well as several coal companies.

What Do the Defendants Say?

Oral arguments in the case were heard on February 28, 2022. 

The Biden administration argued that the case should be dismissed, since there are no regulations for power plant carbon emissions currently in effect. It was joined by amicus briefs filed by environmental groups, Democratic lawmakers, and even power companies. 

“Normally courts review actual regulations, and there is no regulation to review right now,” New York University law professor and environmental law expert Ricky Revesz told CNN. “Whatever the court does will involve speculation, and courts don’t normally—they stress this—give advisory opinions. That’s not what courts do.”

“The Supreme Court must protect the EPA’s ability to guarantee clean air and clean water for all U.S. citizens,” Michael Green, from the American Sustainable Business Network, one of the trade groups to file an amicus brief, told Outside. “For far too long, polluting corporations have taken advantage of our environment as a free dumping ground resulting in a pending climate catastrophe and public health crisis. While we have made giant steps forward to tackle this issue, the job is not done. The Court finds itself at a crossroads. We must continue on the path that upholds the EPA’s mandate for a safe and stable environment and not turn back putting this hard work at risk.”

Have There Been Related Supreme Court Cases in the Past?

In 1984, in Chevron U.S.A v. Natural Resources Defense Council, Inc, the Supreme Court ruled unanimously that courts should defer to a federal agency’s interpretation of a statute it administers, as long as Congress has not created legislation around the precise issue in question. The ruling created a precedent known as the “Chevron deference.” The EPA’s expertise in and ability to regulate carbon emissions, free of court meddling, is its own great example of that. West Virginia v. EPA will challenge the Chevron deference, and through that, could gut the power of federal agencies to regulate industry. 

In 2007, in Massachusetts v. EPA, the Supreme Court ruled in a 5-4 decision that carbon emissions fit the CAA’s definition of air pollution, and that the EPA was therefore required to regulate them. 

In 2015, in Michigan v. EPA, the Supreme Court ruled that the EPA must consider costs in its rule making and enforcement of the CAA. Famously, Justice Antonin Scalia appeared to consider financial costs more important than public health, in his majority opinion. 

Who Stands to Profit? 

In an in-depth feature published earlier this month, The New York Times details a multi-decade effort by right wing think tanks, financiers, and the fossil-fuel industry to eliminate federal regulation of carbon emissions. 

“West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists, and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming,” the article reads. 

It goes on to detail financial ties between the fossil fuel industry and Court judges, the Republican Attorneys General Association, and the Federalist Society, a legal society that argues for extreme interpretations of the Constitution. 

The Times also highlights other lawsuits filed by Republican attorneys general, including one designed to challenge federal regulation of automotive emissions and one that would prevent the federal government from considering the costs of climate change’s impacts. The coordination of these lawsuits across the right wing legal spectrum is described as “a pincer move,” designed to bring together lawsuits created to challenge federal regulation with sympathetic judges “handpicked” to hear them. 

The article concludes with a warning that “this is just the beginning,” of the Federalist Society’s efforts to prevent the federal government from addressing climate change. 

What Are the Potential Outcomes?

If the court sides with the Biden administration and dismisses the case for lack of standing, the Biden administration will be free to write its own rule on power-plant emissions, and the EPA will be able to continue to regulate carbon emissions once that rule is in place. 

There’s also a potential middle ground, in which the court sides with the defendants, but issues a narrow ruling that limits the EPA to regulatory oversight of power plants while preventing the agency from pushing power companies to pivot to renewable energy sources. 

The worst-case scenario is a ruling that returns the authority to regulate carbon emissions to Congress. This would prevent the Biden administration from writing and subsequently enforcing a new rule and put the onus for such on a branch of government currently locked in stalemate. It’s unlikely that any new emissions legislation could pass the filibuster in the Senate, even given Democratic control of both houses of Congress, and the White House. Even if such legislation were to pass, efforts to update those rules over time would be similarly frustrated.

Such a ruling could also potentially imperil the ability of any federal agency to regulate any industry. From the United States Department of Agriculture and chicken farms to the Federal Aviation Administration and air safety.

If the Supreme Court diverts the authority to regulate power plant carbon emissions to Congress, it will give polluters a free pass to pump as much carbon into the atmosphere as they’d like. And that will derail not just our nation’s efforts to minimize the climate disaster, but also the world’s. But surely our nation’s highest court would never intentionally reverse 50-plus years of precedent in order to visit demonstrable harm against the American people, right?