The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The most recent attempt to take down the Affordable Care Act foundered due to a lack of Article III standing. Could the same thing happen to the current challenge to the Environmental Protection Agency's authority to regulate greenhouse gases from the electricity sector? Perhaps.
On February 28 the Supreme Court will hear oral argument in West Virginia v. EPA, in which a coalition of states and coal producers are challenging the scope of the EPA's authority to regulate GHG emissions from power plants under Section 7411 of the Clean Air Act (often referred to as Section 111). Among other things, the petitioners argue that the EPA lacks the authority to consider how utilities can reduce GHGs by shifting to alternative power sources (including renewables) and adopting other "outside the fenceline" changes. Rather, they maintain, the EPA is confined to imposing more traditional emission control requirements (such as the installation of emission-reducing technologies at emitting facilities). Further, the petitioners argue that any implication that the EPA has broader authority is precluded by the "major questions" doctrine, as Congress would not have delegated broad authority to reshape the power sector without explicitly saying so. Given the current composition of the Court, and its recent rejection of OSHA's authority to impose an emergency COVID-19 vax-or-test mandate, must suspect a majority will be open to these arguments.
Because the decision below invalidated the EPA's prior regulation under Section 7411, the Supreme Court's grant of certiorari was a surprise. In American Lung Association v. EPA, the U.S. Court of Appeals for the D.C. Circuit invalidated the Trump Administration's repeal of the Obama EPA's Clean Power Plan and adoption of a far-less-stringent alternative, the Affordable Clean Energy rule. The court then stayed its mandate, so as to allow the EPA the opportunity to come up with a new regulation, as EPA has no interest in seeking to vindicate the ACE rule or to reimpose the CPP.
What all this means is that there is no regulation waiting in the wings to clamp down on GHG emissions. Had the Supreme Court not granted certiorari, a new proposed rule under Section 7411 was likely years off, and any such rule (and the legal interpretation upon which it is based) could be challenged then. This raises an obvious question: What Article III injury do the petitioners face that the Supreme Court can redress? Appropriately, both the Solicitor General and the NGO and Trade Association Respondents raise this question in their briefs.
The particular question here is whether petitioners have appellate standing. "Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit," explained Chief Justice Roberts for the Court in Hollingsworth v. Perry, "but Article III demands that an 'actual controversy' persist throughout all stages of litigation." In Hollingsworth, readers may recall, the Court concluded supporters of California's Proposition 22 (which barred state recognition of same-sex marriage) lacked appellate standing to appeal the Ninth Circuit's decision that the Proposition was unconstitutional. Explained Roberts, "standing must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance" (cleaned up).
According to the SG and NGO respondents, the petitioners lack appellate standing here because they face no actual or imminent injury. They are not injured by the invalidation of the ACE rule, as they are not harmed by the lack of regulation under Section 7411, and they cannot claim impending injury from reimposition of Clean Power Plan, as the D.C. Circuit stayed its mandate. Further, any injury resulting from the D.C. Circuit's broad interpretation of the EPA's regulatory authority is abstract and far off in the future–that is, neither concrete nor actual or imminent as Article III requires–as any such injuries will be dependent upon the particulars of a new Section 7411 regulation that has not yet been issued. Declaring such a regulation void now, they argue, would be tantamount to issuing an advisory opinion. The NGO respondents further note that some of the petitioners had sought to preclude the EPA from regulating existing power plants at all under Section 7411, and while they might have had appellate standing to push that claim, that's one issue from below upon which the Supreme Court did not grant certiorari.
The petitioners' strongest counter-argument would seem to be that the D.C. Circuit opinion, by its terms, requires the EPA to adopt expansive regulations contrary to the petitioners' interests. They will likely point out that the court's mandate is only stayed pending the promulgation of new regulations, and the opinion requires that such regulations embody an interpretation of the CAA that will harm petitioners (by, among other things, constraining the use of coal). Moreover, they'll argue, such adverse legal rulings are typically subject to appellate review, and it would be odd to allow a temporary stay to defeat Article III standing. The D.C. Circuit's stay does not provide permanent or certain relief, as the stay could be lifted should the EPA not adopt new regulations swiftly enough. Such arguments might convince the justices that this case remains within Article III, but it seems to me they only highlight the oddity of Court's grant of certiorari.
I suspect some justices will find the standing arguments appealing, particularly given all the other monster cases on the Court's docket. The question is whether these arguments can attract five votes.
In case the justices balk at the standing argument, perhaps out of a concern that the D.C. Circuit opinion adopted a particularly broad interpretation of EPA's regulatory authority, the SG's brief suggests a simple alternative: Simply vacate the D.C. Circuit opinion and dismiss.
As the brief explains, the petitioners had a clear stake in the case before the D.C. Circuit, but now that the reimposition of the CPP is off the table, that stake has been pushed off into the future. So while the petitioners have a legitimate concern that the EPA will rely upon the D.C. Circuit's holding to adopt a stringent rule adverse to their interests, the content of any such rule is speculative. Thus, the Court can address the petitioners' concern without risking the issuance of an advisory opinion detailing the scope of the EPA's authority in the absence of a rule to review by simply exercising its authority to vacate the lower court decision.
As the SG explains:
the changed circumstances described above have deprived petitioners of their prior stake in the validity of the CPP Repeal Rule. And even if this Court's review on the merits could lead to reinstatement of the ACE Rule, petitioners lack any interest in producing that result. If this Court agrees that resolving the merits would be inappropriate, petitioners' efforts to obtain review of the disputed statutory interpretation will have been "frustrated by the vagaries of circumstance." Bancorp, 513 U.S. at 25; see Biden v. Sierra Club, 142 S. Ct. 46, 46 (2021) (vacating the judgment below in light of "changed circumstances"). Vacatur of the D.C. Circuit's holding that Section 7411 does not unambiguously preclude outside-the-fenceline measures would ensure that judicial review of a future EPA greenhouse-gas rule is unconstrained by the precedential effect of the decision below, without the issuance by this Court of any anticipatory ruling on the merits of the disputed legal issues.
If and when the EPA adopts a new Section 7411 rule, the petitioners would have ample time to challenge such a rule. And (if the Court's past action are any guide), the petitioners could likely obtain a stay of any rule, so as to prevent the EPA from inducing anticipatory compliance while judicial review is pending.
We will see how the petitioners respond to this suggestion–and the government's standing arguments–when they file their reply briefs later this month.