In the News

Despite the US Supreme Court's ruling against the EPA, the agency can still stimulate power sector CO2 abatement in more creative ways. Dena Adler, a research scholar at the New York University School of Law, said, “[The EPA] can consider how to make heat rate improvements more ambitious and look toward what is possible with other techniques such as co-firing and carbon capture and sequestration."

The "generation shifting" approach, which the Supreme Court said the EPA did not have, is "environmentally effective, economically efficient, and supported by power companies", said Dena Adler, a research scholar at the Institute for Policy Integrity at New York University's School of Law. "While this is an unwelcome and unnecessary setback for addressing the urgent climate crisis, EPA still retains the authority, and an obligation, to limit greenhouse gas emissions, including from the power sector," she told China Daily.

The "major questions" doctrine is an attempt to rein in what the court sees as regulatory overreach. The problem is the court has yet to define exactly what counts as a major question, said Richard Revesz, an environmental professor at New York University Law School. "They presented the doctrine in a kind of amorphous and unbounded way," he said. "And we just don't know what this means for the next EPA regulation or the next regulation by any other agency."

Following the West Virginia v. EPA ruling last Thursday, the agency “still has a number of pathways to do its job to protect public health and the environment, including by limiting greenhouse gas emissions from power plants,” Dena Adler, a research scholar at New York University’s Institute for Policy Integrity, told The Hill in an email. But she and other sources agreed there are important limitations now for the EPA that weren’t there before. The ruling specifically applies to the EPA’s 2015 Clean Power Plan, which had a goal of so-called generation-shifting, or accelerating the shift from coal-fired power to renewable energy and natural gas.“That’s a significant constraint, because it was the EPA’s first choice for a reason,” said Jack Lienke, regulatory policy director at the Institute for Policy Integrity. “It reflects how the power grid actually operates and the fact that electricity is fungible.” 

Speaking of the West Virginia v. EPA ruling, Richard Revesz said, "It's basically turning on its head decades of accepted law involving the relationship between congress and administrative agencies."

Yesterday's West Virginia v EPA ruling marked a shift in the way the Supreme Court reviews an agency's authority by focusing more attention on the major questions doctrine, said Max Sarinsky, a professor at the New York University School of Law. "It's inviting courts to apply particular scrutiny and skepticism" when reviewing regulations, Sarinsky said.

While the Supreme Court's recent ruling hinders the Biden administration's ability to battle climate change, the ruling could also affect other agencies, according to Jack Lienke, the Regulatory Policy Director at the Institute for Policy Integrity at NYU School of Law. (Segment begins at 3:55).

The Supreme Court's 6-3 decision in West Virginia v. EPA may not be the worst outcome environmental advocates feared, but it is a major blow to the Biden administration's efforts to reduce the severity of human-caused global warming. "While environmental advocates have much to criticize in the outcome of this case, it is noteworthy that the majority opinion did not challenge the EPA's authority to regulate greenhouse gases in the first place", Richard Revesz, a professor at NYU Law School, said in a statement.

Dueling sentiments defined the day for climate activists, investors and lawyers as they reacted to the Supreme Court’s decision in West Virginia v. EPA. “EPA still has tools to work with. EPA is still going to do the work of regulating greenhouse gas emissions from power plants,” said Jack Lienke. “It’s frustrating ... but the game isn’t over.” 

"The EPA still has a number of pathways to do its job to protect public health and the environment," said Dena Adler, a research scholar at New York University School of Law, noting that "Congress wrote the Clean Air Act to broadly protect public health."