# West Virginia vs. EPA: Worst-Case Scenario and What Comes Next

An episode of [Drilled](https://invisiblenetwork.ai/podcast/1439735906), 3 Mar 2022, 21 min.

Audio: https://podtrac.com/pts/redirect.mp3/tracking.swap.fm/track/SxlTEPDY7xDg35RXkASs/pdrl.fm/3e5572/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/9a7ab5ee-ce11-48ff-a544-b3ec00ea9b1e/b8a702d4-a7d5-4d0e-9ff4-b3ec00f1a36d/audio.mp3?utm_source=Podcast&in_playlist=7f82f371-6316-4ea6-a108-b3ec00ea9b2d

The Supreme Court is taking its time in releasing a ruling in the controversial West Virginia vs. EPA case. We explore the roots of the case, its position in rightwing judicial strategy, and what avenues for climate action would remain in a worst-case scenario. See omnystudio.com/listener for privacy information.

## Transcript

[0:08] Speaker 1: Hey, drilled listeners and damages listeners. This is a special
[0:13] Speaker 1: episode that's dropping in both feeds because there's some big,
[0:16] Speaker 1: important legal news happening in the climate world this week.
[0:21] Speaker 1: On Monday morning, this week, the Supreme Court heard oral
[0:23] Speaker 1: arguments in the West Virginia versus EPA case. This is
[0:27] Speaker 1: a very weird situation. The case started as an argument
[0:31] Speaker 1: about the Clean Power Plan. That's an Obama administration policy
[0:35] Speaker 1: that was in fact never implemented. Why is this case
[0:38] Speaker 1: moving forward? Good question. Supreme Court could still decide not
[0:43] Speaker 1: to rule in the case. That's an argument that was
[0:46] Speaker 1: made by the EPA that this case really shouldn't be
[0:49] Speaker 1: in the courts anymore. But they spend an awful lot
[0:52] Speaker 1: of time asking questions, so that seems unlikely. The good
[0:57] Speaker 1: news is they don't seem inclined to chuck out previous
[1:00] Speaker 1: rulings like aep versus Connecticut and Massachusetts versus EPA, which
[1:05] Speaker 1: had to do with whether or not the EPA was
[1:08] Speaker 1: allowed to regulate greenhouse gases. That's good. That was a
[1:11] Speaker 1: big fear going into this. The bad news this obscure
[1:15] Speaker 1: law that used to almost never come up in the
[1:19] Speaker 1: Supreme Court, but suddenly has been a lot in the
[1:21] Speaker 1: last couple of years, came up a bunch, especially in
[1:24] Speaker 1: the conservative justices, questioning that law is called the Major
[1:29] Speaker 1: Questions doctrine. Sounds really boring, possibly pretty scary. We're going
[1:34] Speaker 1: to get into that and what happened in this case
[1:37] Speaker 1: and what could happen, what it all means with a
[1:40] Speaker 1: couple of experts Jason Rylander from the Center for Biological
[1:43] Speaker 1: Diversity and Richard Revez, a professor at New York and
[1:47] Speaker 1: Richard Revez, professor at NYU Law. And of course I
[1:52] Speaker 1: got up early to stream the oral arguments and tape them,
[1:55] Speaker 1: so we'll give you a little taste of what folks
[1:57] Speaker 1: were saying in court too. That's all coming yep, after
[2:00] Speaker 1: this quick break. I'm Ami Westervelt and this is drilled
[2:05] Speaker 1: and or damages, depending on where you're listening.
[2:30] Speaker 2: Hi, I'm Richard Rivez. I'm a professor of Environmental law
[2:36] Speaker 2: at New York University School of Law, where I direct
[2:39] Speaker 2: the Instant for Policy Integrity, which is a think tank
[2:43] Speaker 2: and advocacy organization working on clean energy and climate change
[2:49] Speaker 2: and environmental issues.
[2:51] Speaker 3: I'm Jason Rylander. I'm an attorney with the Center for
[2:54] Speaker 3: biological diversity in their Climate law institute.
[2:56] Speaker 1: Great, And why, Jason, are we going to hear arguments
[3:01] Speaker 1: about the Clean Power Plan a policy that was never implemented.
[3:05] Speaker 3: That's a very good question, and I think the first
[3:07] Speaker 3: issue that the Court is going to have to take
[3:09] Speaker 3: up is whether they should be hearing this case at all.
[3:13] Speaker 3: As you noted, the Clean Power Plan has never been
[3:16] Speaker 3: in effect. It was developed under the Obama administration, it
[3:21] Speaker 3: was repealed by the Trump administration, and has never ever
[3:26] Speaker 3: become law. So the Court is basically hearing an argument
[3:30] Speaker 3: about pollution regulations that don't exist.
[3:34] Speaker 2: Well before the oral argument, I had the very strong
[3:37] Speaker 2: sense that the right thing for the Court to do
[3:41] Speaker 2: was not to decide this case and to dismiss it.
[3:46] Speaker 2: Supreme Court as a mechanism for dismissing cases is improvidently granted,
[3:51] Speaker 2: and it's not something it does frequently, but on average
[3:54] Speaker 2: it's been doing it about twice a year, and this
[3:57] Speaker 2: case seems like an excellent can to day for that
[4:01] Speaker 2: disposition because there is no regulation in place, the clean
[4:06] Speaker 2: power plant is not in place, and the Affordable Clean
[4:10] Speaker 2: Energy Rule is not in place. A clean power plant,
[4:12] Speaker 2: of course, was the Obama administration regulation of the greenhouse
[4:16] Speaker 2: gas emissions of existing power plants and the Affordable Clean
[4:20] Speaker 2: Energy Rule was a Trump administration's toothless and potentially counterproductive replacement.
[4:27] Speaker 2: But neither are in place, and neither would go back
[4:29] Speaker 2: into effect no matter what the CORE does. So essentially,
[4:34] Speaker 2: no matter what the Corp does, there's not going to
[4:37] Speaker 2: be a clean power plant in place, and there's not
[4:38] Speaker 2: going to be an affordable Clean Energy rule in place.
[4:41] Speaker 2: So all the Court could do is give EPA advice.
[4:47] Speaker 2: This is known in this lingo as an advisory opinion
[4:50] Speaker 2: on what its future rule might look like. But the
[4:53] Speaker 2: federal courts don't have the authority to issue advisory opinions.
[4:57] Speaker 2: That's been clear since essentially the beginning of Republic. So
[5:02] Speaker 2: going into the case, I was, you know, the strong
[5:04] Speaker 2: sense that this was the right thing for the Court
[5:07] Speaker 2: to do. Coming out of the case, I still think
[5:09] Speaker 2: that that is the right thing for the Court to do,
[5:12] Speaker 2: for exactly the same reason that I thought about that before.
[5:16] Speaker 2: But I you know, have to say that while these
[5:20] Speaker 2: issues were discussed, it's not clear to me that five
[5:26] Speaker 2: justices would find that approach compelling.
[5:30] Speaker 1: Can I have you define for people the major Questions
[5:34] Speaker 1: doctrine because that came up a bit, and I think
[5:37] Speaker 1: the general public might not know what that means.
[5:40] Speaker 2: Yeah, the general public would be well served to know
[5:42] Speaker 2: what that means. So the Major Question doctrine is a
[5:46] Speaker 2: doctrine that was used in the past extremely rarely. I
[5:50] Speaker 2: mean the Supreme Court maybe invoked in once every five years,
[5:53] Speaker 2: only five times before this past year in its whole
[5:57] Speaker 2: history starting around nineteen eight in cases that were actually
[6:02] Speaker 2: quite exceptional. But in the last couple of years, it's
[6:06] Speaker 2: a doctrine that's been invoked promiscuously by opponents of regulation.
[6:11] Speaker 3: And the Major Questions doctrine is this offshoot of the
[6:13] Speaker 3: non delegation doctrine, and basically what it says is that
[6:17] Speaker 3: Congress has to speak clearly in delegating authority to an
[6:21] Speaker 3: agency for that agency to be able to take action.
[6:24] Speaker 3: An agency can't do something without congressional authorization.
[6:28] Speaker 2: If an agency decision is going to have vast economic
[6:33] Speaker 2: or political significance, it needs to be authorized explicitly by Congress,
[6:40] Speaker 2: and that the agents shouldn't be doing an under kind
[6:42] Speaker 2: of delegated authority in a somewhat open ended statute. But
[6:46] Speaker 2: now I mean this term the Court has already invoked
[6:49] Speaker 2: it in striking down the OSHA vaccine and testing mandate,
[6:55] Speaker 2: striking down the eviction moratorium, and it obviously played a
[6:58] Speaker 2: big role in the argument yesterday. So it's become you know,
[7:03] Speaker 2: it's gone from something quite extraordinary that happens where the
[7:05] Speaker 2: Court really only deals with it every several years, every
[7:09] Speaker 2: five years, so something that maybe ends up as a
[7:12] Speaker 2: central issue in the Supreme Court multiple times a year.
[7:16] Speaker 2: And this whole transformation has happened very quickly, i'd say,
[7:19] Speaker 2: in the last couple of years.
[7:21] Speaker 3: And most of the briefing in this case is focusing
[7:23] Speaker 3: on just this issue, the sort of major questions doctrine
[7:26] Speaker 3: and whether the EPA can apply its regulations, you know,
[7:31] Speaker 3: broadly to address, you know, not just emissions that are
[7:34] Speaker 3: coming directly from power plants themselves, but whether they can
[7:39] Speaker 3: create a broader system of emissions reductions that would be
[7:42] Speaker 3: more effective. And the interesting thing about it is that
[7:46] Speaker 3: the states and most of the power companies are not
[7:50] Speaker 3: impacted by this regulation at all. I mean, I think,
[7:53] Speaker 3: to put it simply, there's clearly an anti regulatory appetite
[7:58] Speaker 3: amongst certain justice of this Court, and we've seen that
[8:02] Speaker 3: in a number of different cases dealing with the extent
[8:05] Speaker 3: of agency authority. And this idea that they can use
[8:08] Speaker 3: this Major Questions doctrine to kind of look at a
[8:11] Speaker 3: regulation and decide in the abstract whether Congress granted authority
[8:17] Speaker 3: to address that issue without even really looking at an
[8:20] Speaker 3: actual rule is bizarre. It is an expansion of judicial
[8:25] Speaker 3: power in a way that is really pretty inappropriate. And
[8:28] Speaker 3: we've seen commentators kind of across the political spectrum warning
[8:32] Speaker 3: against this expanded use of the Major Questions doctrine to
[8:36] Speaker 3: attack agency rulemaking, but that seems to be where a
[8:40] Speaker 3: few of the justices want to go.
[8:42] Speaker 1: I've heard it described as sort of a new tool
[8:46] Speaker 1: that conservatives are, well, I know, it's not a new doctrine,
[8:49] Speaker 1: but it's newly popular.
[8:53] Speaker 2: Yeah, the very expensive use of it for what you know,
[8:55] Speaker 2: would have been thought of as like run of the
[8:57] Speaker 2: mill regulations. EPA has been regular lating emissions of power
[9:02] Speaker 2: plans literally since the early days of the Cleaner Act
[9:05] Speaker 2: in nineteen seventy, and now this becomes kind of a
[9:09] Speaker 2: big thing, and it's a product exclusively of a significant
[9:14] Speaker 2: change in the composition of the court.
[9:16] Speaker 1: Okay, I'm going to play a little bit from the
[9:18] Speaker 1: oral arguments you'll hear, just as Sodoma r here questioning
[9:22] Speaker 1: one of the attorneys for West Virginia, Lindsay C.
[9:25] Speaker 4: Massachusetts versus EPA, said that carbon dioxide is a pollutant
[9:30] Speaker 4: under the Clean Air Act. So that's clear, right.
[9:33] Speaker 5: We're not challenging that.
[9:34] Speaker 4: Correct, all right, You're not challenging aep Connecticut, where we
[9:38] Speaker 4: said that Congress is clearly delegated to the EPA the
[9:42] Speaker 4: discretion about whether and how to break the late carbon dioxide. Correct.
[9:48] Speaker 5: We are not disputing the portion that said Congress spoke
[9:50] Speaker 5: to whether and how. We are disputing that how means
[9:53] Speaker 5: that EPA can do that.
[9:54] Speaker 4: I understand what you're saying, but this is really a
[9:57] Speaker 4: step further than anything we have said before. All of
[10:01] Speaker 4: our other cases, whether it's regulation of tobacco or regulation
[10:06] Speaker 4: of evictions under major Questions doctrine, have not addressed the how.
[10:12] Speaker 4: Now we're going to the how.
[10:14] Speaker 2: Know.
[10:14] Speaker 3: I think the worst case scenario here is that they
[10:17] Speaker 3: have an EPA's authority in a way that is going
[10:19] Speaker 3: to make it more difficult for the Biden administration and
[10:21] Speaker 3: future administrations to regulate effectively under Section one eleven of
[10:26] Speaker 3: the Clean Air Act. The good news is Clean Air
[10:29] Speaker 3: Act is broader than that, and there are a lot
[10:31] Speaker 3: of other ways that we can get at greenhouse gas pollutions.
[10:34] Speaker 3: And we also know that you know, greenhouse gas pollutions
[10:36] Speaker 3: emerge from things other than stationary coal and power plants.
[10:42] Speaker 2: Well, I think this decision is probably going to mostly,
[10:46] Speaker 2: if at all, affect EPA's authority to regulate the greenhouse
[10:50] Speaker 2: gas emissions of the power sector because regular greenhouse gas
[10:54] Speaker 2: emissions of the power sector has some peculiarities that don't
[10:58] Speaker 2: arise in their contexts. So you know, at old times,
[11:05] Speaker 2: the supply of electricity and demand for electricity have to
[11:08] Speaker 2: be balanced. You know, if they're not balanced, then you know,
[11:14] Speaker 2: bad things are going to happen to the grid, like
[11:16] Speaker 2: you know, blackouts or you know, the we will get
[11:19] Speaker 2: damaged and so so. And that's not true for other products.
[11:26] Speaker 2: So for example, you know, if some factory produced some
[11:31] Speaker 2: manufactured good and the good doesn't sell in the market
[11:35] Speaker 2: right away, you know, the factory can like send it
[11:38] Speaker 2: to its warehouse and it can sit in the warehouse
[11:39] Speaker 2: for six months. You can't do that with electricity, and
[11:44] Speaker 2: so then creates special rectory challenges that you know, come
[11:52] Speaker 2: from the functioning of the grid, and they don't arise
[11:58] Speaker 2: in other contexts. Now you know again, you know, the
[12:00] Speaker 2: Court could write a very broad opinion that could have
[12:03] Speaker 2: all kinds of other repercussions. But I think it will
[12:09] Speaker 2: be hard for the Court to avoid writing an opinion
[12:12] Speaker 2: that focuses significant attention on the structure of the grid.
[12:17] Speaker 2: And if it does that, probably the main impact will
[12:20] Speaker 2: be on the greenhouse gas regulation of the power sector.
[12:25] Speaker 2: But having said that, you know, each of these opinions
[12:29] Speaker 2: reveals a mood about the Court, And if the Court
[12:32] Speaker 2: isn't any kind of expansive Major Questions mood, which it
[12:36] Speaker 2: might be, then you've expected next year there'll be five
[12:40] Speaker 2: other Major Questions cases in which, in other contexts, it
[12:43] Speaker 2: will do other things to constrain the ability of federal
[12:51] Speaker 2: regultary agencies to address pressing health, environmental, climate change, consumer
[13:01] Speaker 2: I've heard.
[13:01] Speaker 1: The sort of recent embrace of the Major Questions doctrine
[13:06] Speaker 1: referred to as as part of an overall strategy to
[13:10] Speaker 1: get to a blockner era, And I I wonder if
[13:15] Speaker 1: you think that's accurate or you know, being dramatic and
[13:19] Speaker 1: be if you could summarize for people. What that means, I.
[13:23] Speaker 2: Would say that the core could be characterized as being
[13:28] Speaker 2: interest in returning us to a prem deal era, you know,
[13:31] Speaker 2: because basically regultary agencies, I mean they pre existed the
[13:36] Speaker 2: New Deal for sure, and they go back to the
[13:38] Speaker 2: nineteenth century. But the big explosion of regtree agencies, the
[13:43] Speaker 2: Federal Trade Commission, the Securities and Exchange Commission, the Federal
[13:46] Speaker 2: Communications Commission, those agencies were established during the New Deal,
[13:51] Speaker 2: I mean in response to the Great Depression in part,
[13:54] Speaker 2: and that's when kind of the big significant pieces of
[14:00] Speaker 2: the business of government started being done by agencies in
[14:05] Speaker 2: the executive branch. And I think that the efforts now
[14:10] Speaker 2: might make it difficult for agencies to do that because
[14:13] Speaker 2: typically Congress delegated to agencies fairly significant discretion, and the
[14:18] Speaker 2: agencies then acted under that discretions. For example, some on
[14:21] Speaker 2: the statutes and deal statutes that regulate in the public interest,
[14:26] Speaker 2: and the agency determined what the public interest was and
[14:29] Speaker 2: thereby took care of its obligation under the statute. But now,
[14:34] Speaker 2: you know, open ended delegations of that sort tend to
[14:38] Speaker 2: be run through major questions lens. And then the court
[14:43] Speaker 2: has been the courts that have done this have been
[14:45] Speaker 2: very quick to find economic and political significance. And often
[14:49] Speaker 2: the political significance just happens to be that there are
[14:51] Speaker 2: you know, a number of states on each side of litigation,
[14:54] Speaker 2: or there's controversy around the issue. But these days, with
[14:56] Speaker 2: the country this divided, there's political over practically anything an
[15:02] Speaker 2: agency does. So we've come up with a test that
[15:08] Speaker 2: is in the eye of the beholder, and a beholder
[15:10] Speaker 2: who's unsympathetic to the regultary enterprise is going to be
[15:13] Speaker 2: able to say that the regulation fits within the kind
[15:18] Speaker 2: of major questions rubric. So I would put it as
[15:21] Speaker 2: a return to before the New Deal. I mean the
[15:23] Speaker 2: Lockner areas actually goes back further. It was a significant
[15:27] Speaker 2: decision Supreme Court back right at the beginning of the
[15:29] Speaker 2: twentieth century, where day's back to nineteen oh five, where
[15:33] Speaker 2: the court was very intrusive and validating federal and state statutes,
[15:40] Speaker 2: mostly ones that regulated working conditions, and kind of the
[15:43] Speaker 2: New Deal era brought an end to that. I mean,
[15:46] Speaker 2: this is a little different because it's being struck down
[15:48] Speaker 2: right now are not the statutes but regulations promulgated under
[15:52] Speaker 2: the statutes. Although the parallel effort, which is probably not
[15:56] Speaker 2: an issue in this case, but you know it's kind
[15:58] Speaker 2: of related, is that the Court there are justices were
[16:02] Speaker 2: appeared to be interested in reviving the non delegation doctrine,
[16:08] Speaker 2: which would lead to striking down statutes.
[16:11] Speaker 1: Can you explain a little bit about the non delegation doctrine?
[16:15] Speaker 2: Well, the non delegation doctrine prohibits delegations to agencies that
[16:22] Speaker 2: are so broad that the agency doesn't have an intelligible
[16:26] Speaker 2: principle to guide the exercise of its discretion. But the
[16:29] Speaker 2: courts so far have been quite receptive to finding limiting
[16:33] Speaker 2: principles and have struck very few things. But there are
[16:37] Speaker 2: justices who I think want to revive a more robust
[16:41] Speaker 2: use of the non delegation doctrine and who might therefore
[16:44] Speaker 2: either recast it in ways in which requires congressional decision
[16:49] Speaker 2: on a much broader set of issues, and has been
[16:52] Speaker 2: Cruisin's new deal. We haven't seen that basically. The Supreme
[16:55] Speaker 2: Court has struck down to cases and non delegation doctrine
[16:58] Speaker 2: its history, both in nineteen thirty six, never before, and
[17:01] Speaker 2: never after. But there is significant concern that a parallel
[17:07] Speaker 2: effort alongside this kind of robust use of the major
[17:11] Speaker 2: questions doctrine will be a very aggressive use of the
[17:14] Speaker 2: non delegation doctrine. I don't think this case provides a
[17:17] Speaker 2: good vehicle for that, and it wasn't significantly brief or argued,
[17:20] Speaker 2: So I think this case is more likely to end
[17:22] Speaker 2: up exploring the major questions doctrine. But you can certainly
[17:26] Speaker 2: imagine a subsequent case in which just as were opposed
[17:29] Speaker 2: to regulation deciding that a revival of the non delegation doctrine.
[17:34] Speaker 1: I'm going to play another clip here on this major
[17:38] Speaker 1: questions and non delegation issue. You'll hear Justice Amy Conny
[17:44] Speaker 1: Barrett here questioning Lindsay C again what is.
[17:47] Speaker 6: The daylight between the major questions doctrine and the non
[17:50] Speaker 6: delegation doctrine. So at the beginning of your argument, you
[17:54] Speaker 6: talked about how the major questions doctrine can be understood,
[17:57] Speaker 6: as you know, inspired by the separation of powers, and
[18:01] Speaker 6: you talked about avoidance and non delegation.
[18:04] Speaker 4: So if the.
[18:04] Speaker 6: Idea is that Congress shouldn't delegate major questions to an agency,
[18:12] Speaker 6: is there any daylight between them?
[18:14] Speaker 5: I think certainly that is a broad view of the
[18:16] Speaker 5: non delegation doctrine. It's not necessary for the court to
[18:19] Speaker 5: go that far to say whether Congress could delegate these questions,
[18:22] Speaker 5: because here it's clear Congress didn't. So I think the
[18:25] Speaker 5: daylight between the two is really this question of has
[18:27] Speaker 5: Congress purported to delegate the major questions clear statement? Can?
[18:31] Speaker 5: It is getting at that question, what did Congress think
[18:33] Speaker 5: it was doing? What did Congress actually do with the
[18:35] Speaker 5: words it put in the statute? And then it would
[18:37] Speaker 5: be a separate question to say if Congress clearly said, EPA,
[18:41] Speaker 5: you may go forward and exercise this transformative power, that
[18:44] Speaker 5: might be a separate non delegation question.
[18:52] Speaker 1: Okay, that's it for this time. Thanks for listening. I
[18:56] Speaker 1: mentioned last time that we're not going to be doing
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