On June 30, 2022, the U.S. Supreme Court issued its opinion in the case of West Virginia v. Environmental Protection Agency. This Supreme Court opinion is one of the most important decisions dealing with air pollution regulation by the Environmental Protection Agency (EPA) in the past 50 years. It seems the Court is prepared to pare back the agency’s ability to promulgate regulations, unless it is clearly granted specific rule-making authority by Congress.
To fully understand the ruling of the Supreme Court, one must look back at least 15 years to the case of Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). In this case, Massachusetts, along with 11 other states (petitioners), sued the EPA for not regulating carbon dioxide as an air pollutant. The states argued that carbon dioxide and other gases from motor vehicles contribute to global warming and climate change which they claimed “may reasonably be anticipated to endanger public health and welfare.” They further argued that for the EPA to decide against regulating these emissions, the EPA would be required to conclude that carbon dioxide emissions did not endanger public health and welfare.
In 1999, the petitioners requested that the EPA regulate carbon dioxide as an air pollutant. In 2003, during the George W. Bush administration, the EPA refused to regulate these gases as air pollutants based on the administration’s policy toward human-caused climate change. This policy included voluntary international climate agreements instead of Clean Air Act regulations. The EPA was then sued, and it took four years of appeals to finally end up before the Supreme Court.
In Massachusetts v. Environmental Protection Agency, the Supreme Court was faced with two simple questions:
- First, can the EPA regulate carbon dioxide as an air pollutant as defined by the Clean Air Act?
- Second, does the EPA have discretion not to issue motor vehicle emissions standards for policy reasons?
In a 5-4 opinion written by Justice Stevens, the Court held that the EPA can regulate carbon dioxide as an air pollutant because the definition of air pollutants under the act permits the regulation of any air pollutant. Further, the Supreme Court held that the EPA cannot cite policy reasons to justify not issuing motor vehicle emissions standards under the Clean Air Act.
The Court’s opinion mandated that EPA regulate carbon dioxide and other gases from motor vehicles. Justice Roberts’ dissent was merely based on a lack of standing for the petitioners (insufficient connection to and harm from the law or action being challenged) and did not reach the merits of the argument.
2. West Virginia v. Environmental Protection Agency
Fifteen years after mandating the EPA regulate green-house gas emissions, the current Supreme Court, in a 6-3 opinion authored primarily by Chief Justice Roberts, held that the Clean Air Act did not give EPA the authority to promulgate air pollution regulations in a plan known as the Clean Power Plan. The Clean Power Plan was an Obama era regulation aimed at reducing greenhouse gas emissions from fossil-fueled power plants. The EPA determines emission limits by defining the “best system of emission reduction (BSER)…that has been adequately demonstrated.” In the Clean Power Plan, the EPA identified “generation shifting” at the grid level as a method for reducing green-house gas emissions.
This concept was simply a shift in electricity production from higher-emitting to lower-emitting producers. For example, the plan would require existing coal-fired power plants to shift to natural gas-fired plants. It also called for the next logical step of moving from gas-fired power plants to renewables, such as wind and solar power. The plan also allowed operators the option of purchasing emission allowances or credits as part of a cap-and-trade regime.
The Supreme Court held that Congress did not grant the EPA, in Section 111(d) of the Clean Air Act, the authority to devise emission caps based on the generation shifting approach the agency tried to implement in the Clean Power Plan. The majority opinion relied on a body of law known as the major question doctrine. Under this body of law, given both separation-of-powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims.
Chief Justice Roberts recognized in his opinion that “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution to the crisis of the day,” but, he added, “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
Writing for the dissent Justice Kagan clearly believed that the EPA plan was authorized by Congress and said, “Whatever else this court may know about, it does not have a clue about how to address climate change.” She goes on to state, “the court appoints itself-instead of Congress or the expert agency – the decision maker on climate policy…I cannot think of many things more frightening.”
3. The Bottom Line
One challenge for projects is to ensure that mitigations spelled out in the approved NEPA (environmental) documents are properly implemented during design and construction. This has often been left to chance. If a conflict between design and the approved NEPA documents is noticed, delays result while redesign takes place. In a worst-case scenario, the conflict may be noticed by an outside stakeholder before the project team can take action, and a legal shutdown may result.
The owner’s project manager or environmental representative may be able to review and verify compliance. Engaging the design team early on makes the design team aware not just of the limits but of the rationale behind the limits. Understanding the environmental constraints integrates those constraints into the design instead of making them check box add-ons at the end of design. It allows the environmental team to understand the design challenges and use their expertise to help mitigate potential adverse environmental issues. In short, it allows for a truly sustainable design.
Most significantly, it gives both the designers and the environmental team “buy-in” for the project and accountability for the successful outcome.
3. How Scout Environmental helps
This ruling has curtailed, but not eliminated, the ability of the EPA to regulate the energy sector. The agency may still use measures such as emission controls at individual power plants. One must also consider, at least until the Supreme Court says otherwise, that states play a major role in determining air pollution limits within their boundaries. Of course, air does not stay within one state’s boundary, so there is still a need to have a national approach to air pollution, greenhouse gas emissions and climate change.
What will the future bring? Watch out for the Supreme Court to continue to clip the administrative law wings of federal agencies. There is likely going to be a push to take more power from regulatory agencies and give more power to the Congress that seems unlikely to take proactive steps to limit greenhouse gases and to protect the global climate.
Remember that there are still numerous Clean Air Act requirements found in both federal and state statutes. Scout Environmental has experts who can help you comply with air pollution control law regardless of the source. If you have questions or need support, please contact us at: firstname.lastname@example.org.