Supreme Court Digs into Statutory Details More than Standing or Nondelegation in West Virginia v. EPA

At today's oral argument, the justices explored Section 111 of the Clean Air Act, the major questions doctrine, justiciability and the regulation of advertising for four-foot cigars smoked through hookahs.

Today the Supreme Court heard oral argument in West Virginia v. Environmental Protection Agency, the most important environmental law case the Supreme Court is hearing this term. While some warned this case could be a Waterloo for the administrative state, most of the oral argument focused narrowly on how to interpret the relevant provisions of the Clean Air Act -- at least that is my preliminary reaction to today's argument.

The focus of the case is the scope of the EPA's authority to regulate greenhouse gases from the power sector. This matters because power plants are responsible for nearly a third of domestic greenhouse gas emissions. In advance of the case, many have raised concerns that the case could have broader impacts on federal agency regulation, particularly if the Court relies upon the major questions doctrine or nondelegation concerns to narrow the scope of the agency's authority. I previewed the case here (and in the posts linked therein).

Over the two-plus hours of argument, the justices seemed most interested in how to interpret the language of Section 111 of the Clean Air Act (42 U.S.C. Section 7411), which is the statutory source of authority to regulate greenhouse gas emissions from power plants. The Obama Administration's Clean Power Plan embodied a broad view of this language, that would justify regulating emissions on a system-wide basis, so as to induce fuel shifting and generation shifting. The petitioner states and coal companies, on the other hand, prefer the narrower reading adopted by the Trump Administration, under which Section 111 only allows the imposition of requirements at individual plants. As Section 111 refers to both the "best system of emission reduction" and the imposition of controls at each "existing source," there was jousting over how the language should be read.

The major questions doctrine was raised repeatedly throughout the argument, largely as an input to the statutory interpretation inquiry, rather than as a stalking horse for the nondelegation doctrine. No justice put forward the argument that Congress lacked the constitutional authority to delegate to the EPA the authority to set emission standards for greenhouse gases. Rather, the focus was on whether Congress has delegated such authority, and whether (due to the major questions doctrine) the Court should disfavor an interpretation that would substantially broaden the EPA's authority, such as by allowing the EPA to require system-wide emission reductions as opposed to focusing on the emission reductions that could be achieved at each plant.

The questioning also revealed that there is no clear consensus on what the major questions doctrine requires, specifically whether it is merely an aid to resolving ambiguity or whether it should operate as a broader presumption against the delegation of regulatory authority. How the Court addresses this point will be important in the ultimate opinion for the Court, as it could determine how much effect this decision has on other regulatory programs. I am still inclined to believe that the petitioners will prevail in this case, but there is some reason to believe this case will produce a narrower opinion than some had thought.

The Solicitor General and some respondents had sought to convince the Court that this case is not justiciable, either because the petitioners lack standing to challenge the lower court judgment or because the case is moot because the EPA is not currently enforcing any regulations against the petitioners. The justices did not seem particularly receptive to these arguments, however. Justice Gorsuch was the first to raise the standing question, and there was relatively little questioning focused on this concern, and minimal pushback to the petitioners' arguments in defense of jurisdiction.

Justice Alito posed what is perhaps the key question to SG Prelogar: Is there any precedent saying that a stay moots a case? There is not. The Court's liberals did not seem meaningfully more receptive to the justiciability concern. Justice Breyer, for instance, challenged SG Prelogar's claim that the the D.C. Circuit's decision does not require reimposition of the Clean Power Plan. Prelogar could not identify any portion of the D.C. Circuit decision to contradict Justice Breyer's reading, and instead suggested he consult a subsequent EPA memorandum. West Virginia SG See hammered this point on rebuttal.

I had previously suggested that the Court should vacate the D.C. Circuit decision and remand to the agency to consider on a clean slate. This would address the petitioners' concerns about the lower court opinions' expansive language, while also avoiding the problem of trying to discern the precise limits of Section 111 without a regulation in place that the EPA wants to defend, but it did not appear there was substantial interest in taking this route.

Interestingly enough, the nondelegation doctrine received relatively little attention during the two-plus hours of argument, other than as a factor that might influence application of the major questions doctrine. This was not a surprise to me, as this case never presented a serious vehicle for a direct nondelegation holding. It seems most of the justices agree (though this would not preclude a separate Justice Gorsuch opinion on this point). Nondelegation may still lurk in the background inducing a narrower read of the statutory language, but it does not appear a majority of the Court plans to do more than that -- at least not in this case.

A few other observations:

• Female advocates are (still) a rarity at the Supreme Court. Today, however, three of the four attorneys arguing were women -- West Virginia Solicitor General Lindsay See, U.S. Solicitor General Elizabeth Prelogar, and Covington & Burling's Beth Brinkmann (on behalf of respondent power companies).
• Justice Sotomayor seemed to have difficulty keeping some of the technical details straight (which is a bit of occupational hazard for those of us who toil in environmental law). She referred to the "CWA," which is not at issue here (but will be in another big environmental case next fall) and to the ozone layer.
• SG Prelogar suggested that because the Clean Power Plan's emission reduction goals have been met nationally, there are no costs to states that did not meet the state-specific goals (and thus no injury) because they could easily engage in trading and the like to meet any emission reduction obligations. In other words, she seemed to be claiming that trading is costless and frictionless, so there are no transaction costs. That is quite a claim.
• Justice Breyer posed a hypothetical involving the regulation of advertising for "four foot cigars smoked through hookahs," prompting quite the chuckle from one of his colleagues (almost certainly Justice Thomas). Brinkmann said the hypothetical was "really helpful," prompting Justice Kagan to note that's not how advocates typically respond to Breyer's hypotheticals.
• Asked when the EPA could be expected to put forward a new rule governing greenhouse gas emissions from power plants, SG Prelogar said the EPA was on track to release such a regulation "this calendar year."