The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, February 28, the Supreme Court will hear oral argument in West Virginia v. Environmental Protection Agency, a challenge to the scope of the EPA's authority to regulate greenhouse gas emissions from power plants. As I discussed in a prior post, the Solicitor General and some of the respondents argue that the Court lacks jurisdiction to hear the case because the petitioners lack standing to challenge the D.C. Circuit's decision. As there is no regulation in place that the EPA is seeking to enforce, they argue, the petitioners do not suffer any injury that a favorable Court decision would redress.
Now that the petitioners have filed their reply briefs (available here), I thought it was worth revisiting the issue.
The D.C. Circuit's decision invalidated the Trump Administration's promulgation of the Affordable Clean Energy rule and its repeal of the Clean Power Plan. Accordingly, all plaintiffs need to be able to show to establish standing is that the reimposition of the CPP would cause them an injury. While much of the nation has achieved the CPP's emission reduction targets, this is not true for every state, which is enough to show that some would be injured by reimposition of the CPP, and that should be enough to sustain the petitioners' standing.
The respondents reply that the petitioners face no real risk from the CPP because the Biden Administration has no interest in reimposing the Obama Administration's rule, and the D.C. Circuit stayed its mandate to prevent the CPP from being reimposed. The stay certainly protects the petitioners, at least for the time being, but I do not think a stay of indefinite duration is sufficient to deny the Court Article III jurisdiction when the Court's mandate otherwise requires the readoption regulatory constraints.
The stay might, however, suggest the case should be dismissed (after vacating the lower court decision) on prudential ripeness grounds. Such a disposition would redress the petitioners injuries while also relieving the Biden Administration of any burden of complying with the D.C. Circuit's judgment (and was, incidentally, suggested as a possible disposition by the Solicitor General).
Should the Court opt to reach the merits, I suspect the outlook is not too good for the EPA's authority over greenhouse gas emissions from the power sector. The relevant provisions of the Clean Air Act were not written with greenhouse gases in mind, nor were they written with an eye toward authorizing the sort of energy system-wide measures the CPP and D.C. Circuit opinion envision. Using these provisions to drive down power sector emissions of greenhouse gases may make policy sense. The question, however, is whether it is legally authorized.
The current Court is reluctant to embrace creative efforts to pour new wine out of an old bottle. Recognizing that power to address major policy questions should be expressly authorized by Congress, a majority of the Court is reluctant to find previously untapped reservoirs of regulatory authority in obscure or rarely used regulatory provisions. Barring a surprise, that would suggest the petitioners are likely to prevail in this case.
[Update: Extraneous "not" removed above]