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By: Helen Winters, Volume 106 Staff Member

This Supreme Court term has so many high-profile cases, ranging from abortion to gun rights to vaccines, that West Virginia v. Environmental Protection Agency has received little attention.[1] The number of landmark cases this term could make it one of the most consequential terms in history. West Virginia “could well become one of the most significant environmental law cases of all time”[2] according to legal commentators, and “is a monster of a case.”[3] This case not only addresses the immediate question of what authority the EPA has under the Clean Air Act but also the broader question of the nondelegation doctrine, and it has strong implications for the future of environmental regulations.


This suit originates with President Obama’s effort to fight climate change, the Clean Power Plan (CPP), which established guidelines for states to develop emission standards for existing power plants.[4] Relying on the Clean Air Act, the goal of the CPP was to achieve significant reductions by 2030 while offering state flexibility.[5] The CPP shifted away from coal and toward cleaner energy methods, which Republicans have long taken issue with.[6] In 2015, opponents of the CPP challenged the EPA’s authority under § 111(d) of the Clean Air Act in the D.C. Circuit; the Supreme Court issued a stay of the CPP, the first time it blocked a regulation prior to review by a federal appeals court.[7] Under President Trump, the EPA replaced the CPP with the Affordable Clean Energy rule (ACE), calling upon coal-powered plants to install new equipment to increase efficiency without phasing out coal.[8] ACE was challenged in the D.C. Circuit and ultimately struck down based “on a mistaken reading” of the Act.[9] A group of coal companies and states, including West Virginia, petitioned the Supreme Court. The Court has consolidated cases on both rules into one.[10] At the center is the question of whose interpretation of the EPA’s authority is correct.


West Virginia includes four consolidated cases litigating the EPA’s authority to regulate emissions under the Clean Air Act.[11] Section 111(b) of the Act directs the EPA to identify sources that significantly contribute to air pollution, and to establish emission standards for pollutants emitted by these sources.[12] In 1971, power plants were identified as one such source.[13] Section 111(d) directs the development of emission standards for the listed categories.[14] An emission standard must reflect achievable reductions through application of the “best system of emission reduction” that the EPA finds has been scientifically demonstrated to work.[15] This determination considers cost and environmental impacts.[16]

A. Petitioners Argue § 111(d) Unconstitutionally Authorizes the EPA to Regulate the Energy Sector, Constraining States

Against the CPP and EPA’s authority under § 111(d), petitioners argue that Congress unconstitutionally authorized the agency to issue rules “without any limits on what the agency can require so long as it considers cost, non-air impacts, and energy requirements.”[17] Under petitioners’ reading, the statute “does not allow the EPA to choose a system of emission reduction . . . that individual stationary sources may not be able to achieve”—emphasizing the impact on states and plants that rely on high-emission sources.[18] They take issue with the EPA’s ability to proscribe the “best” system, suggesting that the proposed emission reductions are unachievable and discriminatory, and grossly enlarge the agency’s administrative powers.[19] Petitioners call for new limits on the Act that would restrict the EPA and protect the coal industry.[20]

First, petitioners emphasize a “text-based reading” of the statute, which creates “[a] process for the EPA and the States to work together to ensure that power plants . . . use proven equipment and practices to reduce their own emissions.”[21] However, petitioners do not believe that the statute authorizes the EPA to “dictate huge shifts . . . of the economy”—namely, a shift away from coal energy.[22] As petitioners see it, this is not working with the states but rather taking control from them. They emphasize the appeals court majority’s reliance on the phrase “best system of emission reduction”[23] and conclude that it fails to reconcile this definition with the “standard of performance” definition and the broader statute.[24]

Second, petitioners argue that the performance standards are not meant to “target specific reduction goals or ambient air concentrations,” but instead emission goals in this section “are tied to what individual sources can achieve using available technology.”[25] While the statute allows the EPA to “establish standards of performance for new stationary sources” the petitioners distinguish this from the more limited authority to regulate existing sources.[26] Under the government’s reading, petitioners argue, the provision has “striking implications for state sovereignty.”[27] In effect, the CPP was therefore “a functional mandate for coal and natural gas states to remake their plants according to one top-down, federal design.”[28]

Finally, and most importantly, petitioners emphasize the policy impact, arguing that the policies to come from the “wholesale power the majority envisioned” will cause certain parties to “suffer unjustified and weighty consequences”, namely economic.[29] Petitioners also suggest that the case will “determine the overall balance of power—legislative versus executive, and federal versus state” for the larger issue of climate change legislation, and unconstitutionally violate separation of powers.[30] The Supreme Court might apply the nondelegation doctrine in response, which could limit the scope of authority Congress can give to the EPA to carry out the Clean Air Act’s provisions.[31]

B. The Government Argues § 111(d) Properly Authorizes the EPA to Regulate the Energy Sector Through the Intelligible Principle Standard, Supported by Congressional Intent

The government’s argument focuses on the limitations of the EPA’s authority to regulate emission standards under § 111, stating that “only certain air-pollutant emissions from existing sources are subject to regulation” under the statute.[32] First, the EPA argues that questioning whether the CPP was lawful has “no continuing practical significance, since that Plan is no longer in effect and the EPA does not intend to resurrect it.”[33] The EPA emphasizes its intent to issue a new § 111 after taking into account “relevant considerations,” and instead argues that “further judicial clarification of the scope of the EPA’s authority under § 111 would more appropriately occur at the conclusion of upcoming rulemaking.” Respondents have argued for Chevron deference, and that the “familiar two-step Chevron standard . . . fully applies to the interpretation of ambiguity that concerns the scope of an agency’s regulatory authority,” as the CAA “clearly delegates to the EPA the authority to ‘fill gaps’ in the Act concerning the appropriate amount of pollution reduction . . . .”[34] A number of the EPA’s supporting intervenors and amici in the appeals cases share its emphasis on normative principles.[35] Under administrative law principles, Congress may delegate legislative powers to agencies like the EPA if they give an “intelligible principle” which provides a general provision by which those who act can fill up the details.[36] While Congress cannot give the EPA free reign to make a law, it can authorize the agency to flesh out the details of an extant law.[37] In effect, the EPA’s argument focuses on administrative law principles to support the agency’s authority to regulate power plant emissions.


The most aggressive arguments against the CPP wouldn’t just apply to environmental regulations; if accepted, the implications of these arguments could “fundamentally alter the structure of the U.S. government.”[38] This case is significant because it addresses both the immediate question of what authority the EPA has under the Act and the broader question of how prescriptive Congress must be when delegating. These arguments encompass the nondelegation doctrine, the idea that Congress cannot transfer legislative power to another branch.[39] Congress does, however, have flexibility and practicality which may require assistance of other branches to implement and enforce laws.[40] Countless federal statutes rely on similar “fill in the blank” structures where agencies are delegated implementation of broad policy, relying on agency expertise.[41]

The EPA’s authority to produce regulations and emission guidelines have long been interpreted as part of its § 111(d) responsibility to determine if a state plan is satisfactory. The language of § 111 requires a standard of performance to “reflect the degree of emission limitation achievable through the application of the best system of emission reduction” identified; a state standard that fails to reach the reductions achievable by the chosen best system is thus outside the statutory definition of “standard of performance,” and cannot be approved as “satisfactory” under § 111.[42] This statutory language is thus a constraint on agency identification of the “best” system, requiring analysis of “the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements” by the Administrator. Further, the statute doesn’t even require sources to use the “best” system: it merely requires attainment of emission standards that would be achieved under that system.[43]

The EPA’s authority to set substantive guidelines has been supported by Congressional amendments and detailed analysis of the language, purpose, and legislative history of § 111(d); it has long been settled.[44] Congress has rejected terms more restrictive than “best system of reduction” to proscribe flexibility, understanding the agency’s expertise.[45] It would thus be in the best interest of the Court to constrain their analysis to the statute at hand. While a holding of this type may give clues to how it stands on Congress’ regulatory authority, it would avoid a determinative ruling that could fundamentally alter the government. A strict nondelegation, as Justice Kagan opined, could render most of government unconstitutional, “dependent as Congress is on the need to give discretion to executive officials to implement its programs.”[46]


[1] Am. Lung. Ass’n v. Env’t Prot. Agency, 985 F.3d 914 (D.C. Cir. 2021), cert. granted, West Virginia v. Env’t Prot. Agency, 124 S. Ct. 420 (Oct. 29, 2021) (No. 20-1530).

[2] Jonathan H. Adler, Supreme Court Agrees to Hear Case Challenging EPA Authority to Regulate Greenhouse Gases (Updated),Volokh Conspiracy (Oct. 29, 2021), [].

[3] See Ian Millhiser, A New Supreme Court Case Could Gut the Government’s Power to Fight Climate Change, Vox (Nov. 3, 2021), [].

[4] 80 Fed. Reg. 64,662 (Oct. 23, 2015).

[5] Id. at 64,820, 64,824–825, 64,664.

[6] See Millhiser, supra note 3 for explanation of the history of the CPP and the cases that have come from opposition. Many of these arguments are encompassed in this pending Supreme Court case.

[7] West Virginia v. Env’t Prot. Agency, No. 15a773 (S. Ct. Feb. 9, 2016).

[8]84 Fed. Reg. 32,520 (July 8, 2019). Researchers concluded that this approach would actually increase greenhouse gas emissions by causing more coal, overall, to be burned; see Millhiser, supra note 3.

[9] Am. Lung. Ass’n v. Env’t Prot. Agency, 985 F.3d 914, 956 (D.C. Cir. 2021).

[10] Am. Lung. Ass’n v. Env’t Prot. Agency, 985 F.3d 914 (D.C. Cir. 2021), cert. granted, West Virginia v. Env’t Prot. Agency, 124 S. Ct. 420 (Oct. 29, 2021) (No. 20-1530).

[11] 42 U.S.C. § 7411(d).

[12] Id. § 7411(b)(1).

[13] Air Pollution Prevention and Control: List of Categories of Stationary Sources, 36 Fed. Reg. 5931 (Mar. 31, 1971).

[14] 42 U.S.C. § 7411(d).

[15] Id. § 7411(a)(1).

[16] Id. § 7411(d).

[17] Petition for Writ of Certiorari at i, West Virginia v. Env’t Prot. Agency, No. 20-1530, 2020 WL 9439135 (S. Ct. Apr. 30, 2021).

[18] Id. at 24.

[19] Id. at 24–26.

[20] Id. at 22 (“States like petitioners have much to lose . . . . The policies we pursue to address climate change and how costs are allocated are serious issues, and the State’s contributions will vary significantly . . . . States like these will almost certainly bear a disproportionate share of the massive costs . . . .”).

[21] Id. at 2.

[22] Id. at 2.

[23] Am. Lung. Ass’n v. Envt’l. Prot. Agency, 985 F.3d 914 (D.C. Cir. 2021), cert. granted, West Virginia v. Env’t Prot. Agency, 124 S. Ct. 420 (Oct. 29, 2021) (No. 20-1530).

[24] Id. at 10 (“Even though the standards of performance indisputably apply to individual sources, the majority concluded that EPA can rely on systems that ‘apply to the source category’ as a whole, or even ‘emissions’ in the abstract.”).

[25] Id. at 4.

[26] Id. at 5.

[27] Id. at 29.

[28] Id.

[29] Id. at 22.

[30] Id. at 23.

[31] Millhiser, supra note 3.

[32] Brief for the Federal Respondents in Opposition at 4, West Virginia v. Env’t Prot. Agency, Nos. 20-1530, 20-1531, 20-1778, and 20-1780, 2020 WL 94391335 (S. Ct. Aug. 5, 2021).

[33] Id. at 16

[34] See Initial Brief for Respondent at 40–42, West Virginia v. Env’t Prot. Agency, No 15-1363 (D.C. Cir. 2016).

[35] See, e.g., Brief for Advanced Energy Ass’ns as Amici Curiae Supporting Respondents at 2–4, Am. Lung. Ass’n v. Env’t Prot. Agency, 985 F.3d 914 (D.C. Cir. 2021), cert. granted, West Virginia v. Env’t Prot. Agency, 124 S. Ct. 420 (Oct. 29, 2021) (No. 20-1530); Brief for Pub. Health Orgs. as Amici Curiae Supporting Respondents at 4, Am. Lung. Ass’n v. Env’t Prot. Agency, 985 F.3d 914 (D.C. Cir. 2021), cert. granted, West Virginia v. Env’t Prot. Agency, 124 S. Ct. 420 (Oct. 29, 2021) (No. 20-1530).

[36] J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

[37] Id. at 410.

[38] See Millhiser, supra note 3.

[39] Gundy v. United States, 139 S. Ct. 2116, 2121 (2019).

[40] Yakus v. United States, 321 U.S. 414, 4215 (1944).

[41] Gundy, 138 S. Ct. at 2129–30 (“Indeed, if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs . . . standards of that kind are ubiquitous in the U.S. Code.”).

[42] Id. § 7411; see also State Plans for the Control of Certain Pollutants from Existing Facilities, 40 Fed. Reg. 53,340, 53,342–44 (Nov. 17, 1975) (rejecting commenters’ argument that EPA does not have authority to require states to establish emissions standards that are at least as stringent as EPA’s emission guidelines).

[43] 42 U.S.C. § 7411(a) (“[A] standard of performance must reflect the emission reductions achievable through use of the best system but need not actually use the best system.”).

[44] 40 Fed. Reg. at 53,342–44; see 42 U.S.C. § 7607(b).

[45] Clean Air Amendments of 1970, Pub. L. No. 91-604, §4(a), 84 Stat. 1676, 1683. The original definition lacks the language directing EPA to consider “any nonair quality health and environmental impact and energy requirements.” 42 U.S.C. § 7411(a)(1).

[46] Gundy v. United States, 139 S. Ct. 2116, 2130 (2019).