On February 28, 2022, the U.S. Supreme Court will hear West Virginia v. EPA, one of the most anticipated environmental law cases on the Court’s docket in recent years. By way of background, in 2015, EPA issued the “Clean Power Plan.” Using the Agency’s authority under Clean Air Act Section 111(d), and styled as a rule to control greenhouse gas emissions from existing coal- and gas-fired power plants, the Clean Power Plan would have required states to shift their electric generation mix away from fossil fuels towards renewables, employing a “cap and trade” credit scheme.
The Supreme Court stayed the Clean Power Plan in 2016, and in 2019 the Trump Administration rescinded it and replaced it with the Affordable Clean Energy rule, concluding that the Clean Power Plan’s design was unambiguously beyond the limits of the Agency’s authority under Section 111. In 2021, and over a dissent from Judge Walker, the D.C. Circuit disagreed. And in American Lung Association v. EPA (985 F.3d 914), the D.C. Circuit vacated the Clean Power Plan repeal and Affordable Clean Energy rule, staying the vacatur indefinitely pending further rulemaking because EPA, under the current administration, has declared it will not enforce either rule.
The issue before the Court in West Virginia v. EPA is whether, when designing rules under Section 111, EPA is limited to identifying “systems of emission reduction” that can be applied to and at the level of an individually regulated facility, or whether there are no limits to EPA’s authority other than the textual commands to consider cost, nonair quality health and environmental impacts, and energy requirements. Federal respondents argue the case is moot and should be dismissed as improvidently granted.
This teleforum will discuss the legal issues involved, questions from the bench, and anticipate where the law could be headed. A broader discussion on West Virginia v. EPA, with additional speakers and analysis, will be provided after the Court renders its decision.
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Featuring:
Speaker: Justin Schwab, Founder, CGCN Law; former Deputy General Counsel, EPA.
Moderator: Garrett Kral, Associate Member of the Environmental Law & Property Rights Practice Group’s Executive Committee; former Special Advisor for Oversight, EPA.