Certain coal companies and states have asked the Supreme Court to narrow the scope of EPA’s authority by prohibiting the agency's use of flexible compliance mechanisms—like intersource emissions trading and production shifting—in regulating greenhouse gas emissions from the power sector. The challengers rely in part on the major questions doctrine, a little-used canon of interpretation that petitioners claim bars EPA from issuing costly and controversial rules.
In this amicus brief, filed on behalf of our director Richard L. Revesz, we explain that petitioners’ application of the major questions doctrine would expand the canon beyond either recognition or workability, stretching a doctrine meant to apply only in rare cases to cover many different regulations advanced by administrations of both parties. We further explain that, contrary to petitioners’ assertions as part of their major questions analysis, EPA has frequently relied on flexible compliance mechanisms under numerous Clean Air Act provisions. Finally, our brief argues that Section 111(d) of the Clean Air Act is an integral statutory provision for regulating air pollution and not an afterthought as petitioners contend.
The Supreme Court will hear the case, West Virginia v. Environmental Protection Agency, later this term. The case seeks to revive the Affordable Clean Energy Rule, a deregulatory action promulgated under the Trump administration that was vacated last year by the U.S. Court of Appeals for the D.C. Circuit.