SCOTUS limits EPA’s authority to regulate greenhouse gas emissions at power plants

On the final day of its October 2021 term, the Supreme Court ruled that the Environmental Protection Agency (EPA) overstepped its authority by regulating greenhouse gas emissions produced by power plants through the Clean Air Act.

“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,” wrote Chief Justice John Roberts on behalf of the six-person majority in West Virginia v. EPA.

Associate Justices Neil Gorsuch, Brett Kavanaugh, Samuel Alito, Clarence Thomas and Amy Coney Barrett joined the majority. Gorsuch also wrote a concurring opinion, which Alito joined. Associate Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor filed a dissenting opinion.

The court’s majority ruled that the EPA can regulate emissions at power plants but cannot set up a national system without specific congressional authorization. 

“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,” wrote Roberts, “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Co- lumbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion,” wrote Roberts.

In his concurring opinion, Gorsuch discussed the Constitution’s nondelegation doctrine, which prohibits the legislature from delegating its powers to other agencies. Gorsuch noted that legislating on the national level is difficult, but that this is by design and allowing Congress to give legislative power to the executive branch would “dash” the protection of rights put in place by the Constitution.

“Legislation would risk becoming nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him,” wrote Gorsuch.

“In a world like that,” Gorsuch continued, “agencies could churn out new law more or less at whim. Intrusions on liberty would not be difficult and rare, but easy and profuse.”

Writing for the minority, Kagan disagreed that Congress had not given the EPA power to regulate “potentially catastrophic harms” caused by climate change, “including through regulation of fossil-fuel-fired power plants.”

Kagan wrote that Section 111 of the Clean Air Act directs the 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.’”

“Carbon dioxide and other greenhouse gasses fit that description,” Kagan continued.

Kagan concluded by saying the majority’s decision amounted to the court appointing itself, rather than Congress or an expert agency, the decision-maker on climate policy.

“I cannot think of many things more frightening. Respectfully, I dissent,” Kagan wrote.

Gov. Janet Mills released a statement criticizing the ruling shortly after it was released.

“This flawed and shortsighted decision is an offense to Maine people. It undermines one of our nation’s signature environmental protections – the Clean Air Act, crafted by Maine’s own Ed Muskie and reauthorized under George Mitchell – and it significantly hinders our country’s ability to tackle the climate crisis. Maine and the nation will pay the price for years to come. Maine people and businesses are feeling the impact of climate change right now, every day and, regardless of this decision, my Administration will continue to take aggressive action to fight this crisis and make our state more resilient to its impacts. The future of our state, our families, and our planet depends on it,” Mills said.