West Virginia v. Environmental Protection Agency

Table of Contents

Notable Items:

Equates a requirement to "more stringently regulate" by states to an "injury" of those states. (See Majority Rationale quoting Part II page 14)
... the Government must--under the major questions doctrine--point to “clear congressional authorization” to regulate in that manner [make decisions of vast “economic and political significance.”]. Utility Air, 573 U. S., at 324.
Gorsuch Concurrence lists what he believes to be the conditions that trigger the Major Questions Doctrine and the characteristics of “clear congressional authorization”.

Assuming jurisdiction and justisibility, the instant case could have been decided on the basis of Congress granting authority to regulate each source indivdually. A system-wide regulation could be understood to exceed that authority. “If it is not necessary to decide more to a case, then in my view, it is necessary not to decide more to a case, ...." (John Roberts address to Georgetown University law graduates 2015) [Chevron deference?] (toc)

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• A full recounting of the facts is available below

Procedural History:

• Consolidated with The North American Coal Corporation v. EPA, Westmoreland Mining Holdings LLC v. EPA, and North Dakota v. EPA
• Part I C Repeal of Clean Power Plan and promulgation of Affordable Clean Energy (10)
• The same day that EPA promulgated the rule, dozens of parties (including 27 States) petitioned for review in the D. C. Circuit. After that court declined to enter a stay of the rule, the challengers sought the same relief from this Court.
• We granted a stay, preventing the rule from taking effect. West Virginia v. EPA, 577 U. S. 1126 (2016).
• The new administration requested that the litigation be held in abeyance so that EPA could reconsider the Clean Power Plan. The D. C. Circuit obliged, and later dismissed the petitions for review as moot.
• EPA eventually repealed the rule in 2019 .... Specifically, the Agency concluded that generation shifting should not have been considered as part of the BSER.
• The Agency [now] interpreted Section 111 as “limit[ing] the BSER to those systems that can be put into operation at a building, structure, facility, or installation,” .... [emphasis added]
• [Trump administration] EPA argued that under the , a clear statement was necessary to conclude that Congress intended to delegate authority “of this breadth to regulate a fundamental sector of the economy.”
• In the same rulemaking, the Agency replaced the Clean Power Plan by promulgating a different Section 111(d) regulation, known as the Affordable Clean Energy (ACE) Rule. ... akin to building block one of the Clean Power Plan: a combination of equipment upgrades and operating practices that would improve facilities’ heat rates. [thereby ensuring ' “lead to only small emission reductions,” because coal-fired power plants were already operating near optimum efficiency. ']
• The ACE Rule determined that the application of its BSER measures would result in only small reductions in carbon dioxide emissions.
• Part I D New Administration, New Actions (12)
• A number of States and private parties immediately filed petitions for review in the D. C. Circuit, challenging EPA’s repeal of the Clean Power Plan and its enactment of the replacement ACE Rule.
• The Court of Appeals consolidated all 12 petitions for review into one case. It then held that EPA’s “repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act”--namely, that generation shifting cannot be a “system of emission reduction” under Section 111.
• As part of that analysis, the Court of Appeals concluded that the major questions doctrine did not apply, and thus rejected the need for a clear statement of congressional intent to delegate such power to EPA.
• Having found that EPA misunderstood the scope of its authority under the Clean Air Act, the Court vacated the Agency’s repeal of the Clean Power Plan and remanded to the Agency for further consideration.
• [February 2021] ... EPA moved the Court of Appeals to partially stay the issuance of its mandate as it pertained to the Clean Power Plan. The Agency did so to ensure that the Clean Power Plan would not immediately go back into effect. ... while it was in the process of considering whether to promulgate a new Section 111(d) rule.
• No party opposed the motion, and the court ac- cordingly stayed its vacatur of the Agency’s repeal of the Clean Power Plan.
• Westmoreland, NACC, and the States defending the re- peal of the Clean Power Plan all filed petitions for certiorari.
• Part I Standing and Mootness (14)
• We first consider the Government’s contention that no petitioner has Article III standing to seek our review.
• In considering a litigant’s standing to appeal, the question is whether it has experienced an injury “fairly traceable to the judgment below.” If so, and a “favorable ruling” from the appellate court “would redress [that] injury,” then the appellant has a cognizable Article III stake.
• ... to the extent the Clean Power Plan harms the States, the D. C. Circuit’s judgment inflicts the same injury. And there can be “little question” that the rule does injure the States, since they are “the object of ” its requirement that they more stringently regulate power plant emissions within their borders. ["more stringently regulate" == injury]
• ... EPA informed the Court of Appeals that it does not intend to enforce the Clean Power Plan because it has decided to promulgate a new Section 111(d) rule. “These circumstances have mooted the prior dispute as to the CPP Repeal Rule’s legality.”
• It is the doctrine of mootness, not standing, that addresses whether “an intervening circumstance [has] deprive[d] the plaintiff of a personal stake in the outcome of the lawsuit.”
• But “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
• Here the Government “nowhere suggests that if this litigation is resolved in its favor it will not” reimpose emissions limits predicated on generation shifting; ....

Rationale

Roberts Majority Opinion (Thomas, Alito, Gorsuch, Kavanaugh, Barrett)

• 1. This case remains justiciable notwithstanding the Government’s contention that no petitioner has Article III standing, given EPA’s stated intention not to enforce the Clean Power Plan and to instead engage in new rulemaking.
• ... the Government bears the burden to establish that a once-live case has become moot. But “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Pp. 14–16.
• 2. Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan. Pp. 16–31.
• (a) Precedent teaches that there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. ... the agency must point to “clear congressional authorization” for the authority it claims. Pp. 16–20.
• (b) This is a major questions case. Prior to 2015 ... regulated source to operate more cleanly ... never by looking to a “system” that would reduce pollution simply by “shifting” polluting activity “from dirtier to cleaner sources.” Pp. 20–28.
• (c) ... the Government must point to “clear congressional authorization” to regulate in that manner. Pp. 28–31.
• “It is a fundamental canon of statutory construction that the words of a statute must be read in their context ....
• In the ordinary case, that context has no great effect on the appropriate analysis. Nonetheless, our precedent teaches that there are “extraordinary cases” that call for a different approach—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority.
• The agency instead must point to “clear congressional authorization” for the power it claims.
• Under the Agency’s prior view of Section 111, its role was limited to ensuring the efficient pollution performance of each individual regulated source.
• We also find it “highly unlikely that Congress would leave” to “agency discretion” the decision of how much coal-based generation there should be over the coming decades. “We are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”
• To overcome that skepticism, the Government must--under the major questions doctrine--point to “clear congressional authorization” to regulate in that manner. Utility Air, 573 U. S., at 324.
• A full description of the rationale is available below

Gorsuch Concurrance (Alito (xxx)

• I join the Court’s opinion and write to offer some additional observations about the doctrine on which it rests.
• Part I A -- Analogues to the Major Questions Doctrine
• The Constitution prohibits Congress from passing laws imposing various types of retroactive liability. Justice Paterson likewise insisted that courts must interpret statutes to apply only prospectively “unless they are so clear, strong, and imperative, that no other meaning can be annexed to them.” United States v. Heth, 3 Cranch 399, 413 (1806). [Explicit: No Bill of Attainder or ex post facto Law. Article I, Section 9]
• The Constitution also incorporates the doctrine of sovereign immunity. To enforce that doctrine, courts have consistently held that “nothing but express words, or an insurmountable implication” would justify the conclusion that lawmakers intended to abrogate the States’ sovereign immunity. Chisholm v. Georgia, 2 Dall. 419, 450 (1793) (Iredell, J., dissenting) [emphasis added] [Explicit: The judicial Power shall extend to all Cases ... Controversies ... between a State and Citizens of another State .... Article III, Section 2]
• The major questions doctrine works in much the same way to protect the Constitution’s separation of powers.
• Permitting Congress to divest its legislative power to the Executive Branch would “dash [this] whole scheme.”
• Rather than embody a wide social consensus and input from minority voices, laws would more often bear the support only of the party currently in power.
• Part I B -- Previous Uses of Major Questions Doctrine (6)
• Much as constitutional rules about retroactive legislation and sovereign immunity have their corollary clear-statement rules, Article I’s Vesting Clause has its own: the major questions doctrine. See Gundy [v. United States], 588 U. S., at ___–___ (GORSUCH, J., dissenting) (slip op., at 20–21). ["All legistative powers". Examples of previous uses of major questions doctrine, not an explantion or precedential reference]
• [cites the same list of cases as Roberts, but substitutes National Federation of Independent Business v. OSHA for Whitman v. American Trucking Associations, Inc.]
• Part II A -- Triggers for Application of the Major Questions Doctrine (9)
• Turning from the doctrine’s function to its application ....
• First, this Court has indicated that the doctrine applies when an agency claims the power to resolve a matter of great “political significance,” NFIB v. OSHA, 595 U. S., at ___ (slip op., at 6) (internal quotation marks omitted), or end an “earnest and profound debate across the country,” Gonzales, 546 U. S., at 267–268
• Second, this Court has said that an agency must point to clear congressional authorization when it seeks to regulate “‘a significant portion of the American economy,’” Utility Air, 573 U. S., at 324), or require “billions of dollars in spending” by private persons or entities, King v. Burwell, 576 U. S. 473, 485 (2015).
• Third, this Court has said that the major questions doctrine may apply when an agency seeks to “intrud[e] into an area that is the particular domain of state law.” Ibid.
• While this list of triggers may not be exclusive, each of the signs the Court has found significant in the past is present here, making this a relatively easy case for the doctrine’s application.
• Part II B -- Clear Statements of Congressional Delegation (13)
• At this point, the question becomes what qualifies as a clear congressional statement authorizing an agency’s action.
• First, courts must look to the legislative provisions on which the agency seeks to rely “‘with a view to their place in the overall statutory scheme.’” Brown & Williamson, 529 U. S., at 133.
• Second, courts may examine the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address.
• Third, courts may examine the agency’s past interpretations of the relevant statute. ... the Court found it “telling that OSHA, in its half century of existence, ha[d] never before adopted a broad public health regulation” under the statute that the agency sought to invoke as authority for a nationwide vaccine mandate.
• Fourth, skepticism may be merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise.
• Part III (16)
• [nothting of note]

Kagan Dissent (Breyer, Sotomayor) (xxx)

• Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time.” Massachusetts v. EPA, 549 U. S. 497, 505 (2007).
• Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil- fuel-fired power plants.
• Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” 42 U. S. C. §7411(b)(1)(A).
• Carbon dioxide and other greenhouse gases fit that description.
• To carry out its Section 111 responsibility, EPA issued the Clean Power Plan in 2015.
• The premise of the Plan--which no one really disputes--was that operational improvements at the individual-plant level would either “lead to only small emission reductions” or would cost far more than a readily available regulatory alternative.
• That alternative--which fossil-fuel-fired plants were “already using to reduce their [carbon dioxide] emissions” in “a cost effective manner”--is called generation shifting.
• But the Court’s docket is discretionary, and because no one is now subject to the Clean Power Plan’s terms, there was no reason to reach out to decide this case.
• The parties do not dispute that generation shifting is indeed the “best system”--the most effective and efficient way to reduce power plants’ carbon dioxide emissions.
• The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms.
• A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.
• Part I (5)

Full Recounting of Facts

• The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into the air 84 Stat. 1683, 42 U. S. C. §7411(a)(1).
• That standard may be different for new and existing plants, but in each case it must reflect the “best system of emission reduction” that the Agency has determined to be “adequately demonstrated” for the particular category. §§7411(a)(1), (b)(1), (d).
• In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.
• Part I A Pollution regulation prior to October 2015 (2)
• The Clean Air Act establishes three main regulatory programs to control air pollution from stationary sources such as power plants.
• One program is the New Source Performance Standards program of Section 111, at issue here.
• The other two are the National Ambient Air Quality Standards (NAAQS) program, set out in Sections 108 through 110 of the Act, 42 U. S. C. §§7408–7410, and the Hazardous Air Pollutants (HAP) program, set out in Section 112, §7412.
• The NAAQS program addresses air pollutants that “may reasonably be anticipated to endanger public health or welfare,” and “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources.” [includes vehicles(?) and mobile generators(?)]
• The HAP program primarily targets pollutants, other than those already covered by a NAAQS, that present “a threat of adverse human health effects,” including substances known or anticipated to be “carcinogenic, mutagenic, teratogenic, neurotoxic,” or otherwise “acutely or chronically toxic.”
• The third air pollution control scheme is the New Source Performance Standards program of Section 111. §7411. That section directs EPA to list “categories of stationary sources” that it determines “cause[], or contribute[] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A).
• Thus, the statute directs EPA to (1) “determine[ ],” taking into account various factors, the “best system of emission reduction which ... has been adequately demonstrated,” (2) ascertain the “degree of emission limitation achievable through the application” of that system, and (3) impose an emissions limit on new stationary sources that “reflects” that amount.
• Under Section 111(d), once EPA “has set new source standards addressing emissions of a particular pollutant under ... section 111(b),” 80 Fed. Reg. 64711, it must then address emissions of that same pollutant by existing sources—but only if they are not already regulated under the NAAQS or HAP programs. [“operates as a gap-filler"]
• Reflecting the ancillary nature of Section 111(d), EPA has used it only a handful of times since the enactment of the statute in 1970. (fiber mist, sulfide gases, harmful gases from municipal landfills)
• Part I B Clean Power Rule of October 2015 (6)
• ... October 2015 ... EPA promulgated two rules addressing carbon dioxide pollution from power plants—one for new plants under Section 111(b), the other for existing plants under Section 111(d).
• Carbon dioxide is not subject to a NAAQS and has not been listed as a toxic pollutant [HAP].
• Because EPA was now regulating carbon dioxide from new coal and gas plants, Section 111(d) required EPA to also address carbon emissions from existing coal and gas plants. §7411(d)(1). It did so through what it called the Clean Power Plan rule.
• The BSER for existing plants included three types of measures, which the Agency called “building blocks.”
• The first building block was “heat rate improvements” at coal-fired plants—essentially practices such plants could undertake to burn coal more efficiently. But such improvements, EPA stated, would “lead to only small emission reductions,” because coal-fired power plants were already operating near optimum efficiency.
• Building block two was a shift in electricity production from existing coal-fired power plants to natural-gas-fired plants. Because natural gas plants produce “typically less than half as much” carbon dioxide per unit of electricity created as coal-fired plants, ....
• Building block three worked the same way, except that the shift was from both coal- and gas-fired plants to “new low- or zero-carbon generating capacity,” mainly wind and solar.
• The Agency identified three ways in which a regulated plant operator could implement a shift in generation to cleaner sources.
• First, an operator could simply reduce the regulated plant’s own production of electricity.
• Second, it could build a new natural gas plant, wind farm, or solar installation, or invest in someone else’s exist- ing facility and then increase generation there.
• [Third,] operators could purchase emission allowances or credits as part of a cap-and-trade regime.
• The Agency settled on what it regarded as a “reasonable” amount of shift, which it based on modeling of how much more electricity both natural gas and renewable sources could supply without causing undue cost increases or reducing the overall power supply.
• Based on these changes, EPA projected that by 2030, it would be feasible to have coal provide 27% of national electricity generation, down from 38% in 2014. [Coal based electricity generation declined to less than 20% by 2022.] [Real cost of electricity dropped from $0.167/kWh in 2015 to $0.159/kWh in 2022.]
• ... no existing coal plant would have been able to achieve them [emissions ceilings] without engaging in one of the three means of shifting generation described above.
• A list of the material facts is available above

Roberts Majority Full Argument (Thomas, Alito, Gorsuch, Kavanaugh, Barrett)

• See Material Facts
• See Procedural History
• Part III A The Issue at Hand (16)
• The issue here is whether restructuring the Nation’s overall mix of electricity generation, ... can be the “best system of emission reduction” within the meaning of Section 111.
• “It is a fundamental canon of statutory construction that the words of a statute must be read in their context ....
• In the ordinary case, that context has no great effect on the appropriate analysis. Nonetheless, our precedent teaches that there are “extraordinary cases” that call for a different approach—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority.
• The agency instead must point to “clear congressional authorization” for the power it claims.
• Part III B (20)
• Under our precedents, this is a major questions case.
• [Roberts points to previous decisions since 2000 to claim that this case is falls under the major questions doctrine: Brown & Williamson, Whitman v. American Trucking Associations, Inc., Gonzales v. Oregon, Utility Air Regulatory Group v. EPA, Alabama Assn. of Realtors v. Department of Health and Human Servs ]
• Under the Agency’s prior view of Section 111, its role was limited to ensuring the efficient pollution performance of each individual regulated source.
• We also find it “highly unlikely that Congress would leave” to “agency discretion” the decision of how much coal-based generation there should be over the coming decades. “We are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”
• “The importance of the issue,” along with the fact that the same basic scheme EPA adopted “has been the subject of an earnest and profound debate across the country, . . . makes the oblique form of the claimed delegation all the more suspect.” Gonzales, 546 U. S., at 267–268
• Part III C (28)
• Given these circumstances, our precedent counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach.
• To overcome that skepticism, the Government must--under the major questions doctrine--point to “clear congressional authorization” to regulate in that manner. Utility Air, 573 U. S., at 324.
• We have no occasion to decide whether the statutory phrase “system of emission reduction” refers exclusively to measures that improve the pollution performance of individual sources, such that all other actions are ineligible to qualify as the BSER.
• But the only interpretive question before us, and the only one we answer, is more narrow: whether the “best system of emission reduction” identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act.
• For the reasons given, the answer is no.
• The core of the rationale is available above