The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Environmental Protection Agency

EPA Pushes Back Power Plant Greenhouse Gas Regulations While Awaiting Supreme Court Ruling

No matter how the Supreme Court rules in West Virginia v. EPA, absent legislative action it is unlikely new power plant rules will be in force before 2024.


Climatewire reports that the Environmental Protection Agency (EPA) has pushed back the planned release of new proposed regulations under the Clean Air Act to limit greenhouse gas emissions from power plants. This is auspicious timing, as the Supreme Court is poised to issue an opinion in West Virginia v. Environmental Protection Agency, which will likely define the scope of the EPA's authority to issue such rules.

As the Climatewire story notes, the Biden Administration had initially planned to issue proposed rules in July of this year that could be finalized in summer 2023. At oral argument in WVA v. EPA, however, Solicitor General Elizabeth Prelogar told the Court that EPA expected to issue a notice of proposed rulemaking by the end of the year. Now the EPA is not planning to issue a proposed rule until March 2023, which would mean that it is unlikely any rule could be finalized before 2024.

One consequence of the EPA pushing back the timetable for greenhouse gas regulations for power plants is that any legal challenge to the rule would likely be resolved after the 2024 election. Whether a potential Republican administration would defend any such rule would likely depend upon how aggressively the EPA interprets its Clean Air Act authority, and whether such interpretation pushes up against the Supreme Court's ultimate ruling in WVA v. EPA.