West Virginia v. EPA: Maybe A Big Deal, But Maybe Not

Authors

Michael Lewyn

Document Type

Symposium

Abstract

(Excerpt)

In West Virginia v. EPA, the Supreme Court held that the Environmental Protection Agency (“EPA”) lacked statutory authority to enact the Clean Power Plan, an EPA rule that encouraged coal-fired power plants to use non-coal sources of energy. The Court’s decision relied on the “major questions doctrine.” Under this doctrine, even if an unclear statute does not directly prohibit an administrative agency’s action, courts will reject an agency’s action when it is “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Because the major questions doctrine is itself unclear, a variety of commentators suggested that the Court’s decision radically limits environmental regulation or even the administrative state generally.

The West Virginia v. EPA majority opinion, however, is quite narrowly written. By emphasizing the unique facts of the case, the Court gave itself ample discretion to distinguish its decision in future cases. It logically follows that the Court’s decision is not the end of greenhouse gas regulation or environmental regulation generally—at least not yet.

Part I of this Essay briefly summarizes the West Virginia case. Part II focuses on the details of the majority opinion of that case, showing how the Court emphasized the unique facts of the case. Part III suggests that federal jurisprudence under the Takings Clause of the Fifth Amendment is analogous.