Update: Supreme Court to Weigh EPA Authority on Greenhouse Pollutants

Yves here. This post does a very good high level job of unpacking the procedural and substantive issues in a potentially important Supreme Court case.

By Lexi Smith, a third-year student at Yale Law School who studied environmental science and public policy as an undergraduate at Harvard and then worked on environmental policy for the Mayor of Boston. Originally published at Yale Climate Connections

The Supreme Court in late February is to hear West Virginia v. EPA, a case challenging the Environmental Protection Agency’s authority to regulate greenhouse gasses as pollutants. This site in November explored best- and worst-case scenario outcomes from the perspective of climate action advocates based on arguments in initial briefs filed by parties to the case.

This update surveys some of the key legal questions on which the case may turn, including those detailed in a new round of briefs from the litigants and from outside groups.

Standing, in Absence of an Adopted Regulation

The Court’s decision to hear West Virginia v. EPA in the first place was controversial among some in the legal community and, in particular, among climate action proponents, and not just because of its environmental implications.

The case to be argued before the Supreme Court on February 28 concerns the Clean Air Act provision that the Obama administration relied on to create the Clean Power Plan regulation. The Trump administration later repealed and replaced that regulation, substituting the weaker Affordable Clean Energy rule, which the D.C. Circuit vacated.

The groups challenging the EPA’s authority in West Virginia v. EPA are essentially anticipating the possibility that the Biden administration will use the same provision of the Clean Air Act to put forward new greenhouse gas regulations on coal-fired power plants.

That “anticipatory” aspect of the case is where things get complicated procedurally. To bring a lawsuit in federal court, plaintiffs must establish they have “standing.” Standing requires that a party show that they have been injured, that the person or institution they are suing caused the injury, and that the courts can redress the injury. Courts generally reject suits that deal with speculative injuries based on the view that under the Constitution they are to address only live “cases or controversies.” In other words, the federal courts cannot issue “advisory opinions” about situations, in this case a federal regulation not yet actually adopted or “promulgated.”

The Biden EPA argued in a recent brief that the challengers in this case do not have standing because there is no EPA rule currently in place that uses the Clean Air Act provision in question to regulate greenhouse gasses: The EPA brief argues that the challengers’ injury is speculative. As the brief puts it, the challengers’ “real concern is that the EPA might incorporate some features of the [Clean Power Plan] into a future … rule. But the contours of such a rule are uncertain.”

This argument presents a neat and easy way for the Supreme Court to hear the case without deciding its merits: The Court could decide it on standing grounds without deciding any other questions presented. Of course, the Court could later choose to hear a future case challenging eventual Biden administration greenhouse gas regulations if and when they are promulgated.

Such an approach might appeal to some of the moderate conservative Justices, who tend to favor “judicial modesty” and often support dismissing cases on grounds that the Court does not have the power to hear them. And the liberal Justices might support such a ruling because it would minimize potential damage both to the EPA and to the administrative state (more on that below).

But the Court chose to hear the case, doing so through its internal voting system that requires at least four votes to put West Virginia v. EPA on the docket. The exact rationale for that decision is speculative, but the case is likely attractive to conservatives because it presents an opportunity to limit the power of federal agencies, which some conservative jurists see as an unconstitutional expansion of government power. Presumably at least four Justices voted in favor of hearing the case so it can be considered on its merits, rather than dismiss it on grounds of lack of standing. The key question then involves whether those who seek to limit agency power can reach a five-vote majority on the nine-member Court. If not, a decision on standing grounds seems a likely outcome.

‘Major Questions’ Doctrine: Congress to Make Most-Important Decisions Itself?

On the theme of limiting the power of federal agencies, one argument was made more frequently and forcefully than any other in the challengers’ and their supporters’ briefs: that EPA lacks authority to regulate greenhouse gasses because of the “major questions doctrine.”

That admittedly vague doctrine essentially suggests that courts should presume that Congress wants to make the most important policy decisions itself, rather than delegating them to Executive branch agencies.

For those wanting to significantly curtail federal agencies’ power, the reasoning goes like this:

1) a statute is ambiguous about whether an agency has been delegated decision-making authority; and

2) granting the agency that authority would allow it to address a major question.

In that case, courts should assume that Congress did not delegate the authority. In other words, Congress would not hide elephants in mouseholes: It would speak clearly if it meant to delegate away its authority on a question as significant or as “major” as that involving greenhouse gas regulation.

This “major questions” issue is closely related to the nondelegation doctrine, discussed in this site’s earlier analysis on this case. To summarize, the nondelegation doctrine argues that Congress cannot constitutionally delegate its lawmaking power to federal agencies. But although the nondelegation and major questions doctrines are related, deciding the pending case on “major questions” grounds could be less damaging to Executive branch agency authority more broadly.

If the Supreme Court decides the case on grounds of the major questions doctrine, the precedent would be limited to circumstances where an ambiguous law is used to justify exercise of agency authority on a major question. In other words, Congress could still delegate power over major questions to agencies, but it would have to say so explicitly in the relevant law.

In contrast, if the Court decides the case on nondelegation grounds, the Court would be saying there’s a (heretofore largely unenforced) constitutional limitation on Congress’s ability to delegate power to agencies. If the Court decides the case that way, the argument would ensue that Congress could not delegate power over major questions at all, no matter how explicitly it tried to do so.

Making predictions about major Supreme Court decisions is a risky business, but the Court might well favor a major questions approach over a nondelegation approach. Some of the Court’s more conservative Justices may wish to enforce the nondelegation doctrine more forcefully. But such a judgment likely would be politically explosive, particularly given that a major-questions ruling still would have represented a significant (some might even say unprecedented) victory for those interested in limiting the power of federal agencies.

A somewhat subtler approach would likely be more appealing to Court conservatives such as Chief Justice Roberts, concerned about growth of the reputation of the Court as a partisan institution. Indeed, a brief from Democratic Senators Sheldon Whitehouse of Rhode Island, Richard Blumenthal of Connecticut,  Elizabeth Warren of Massachusetts, and Independent Senator Bernie Sanders of Vermont seems to appeal to this concern about the Court’s reputation. Those senators argue that a decision against the EPA could undermine the public’s faith in the Supreme Court and lead to its increasingly being seen as a purely political body. The briefs for the challengers address this concern in a different way: namely by invoking the major questions doctrine rather than the nondelegation doctrine, likely because they sense it is a more appealing argument given the current makeup of the Court with six Justices generally seen as “conservative” and three generally described as “liberal.”

That said, a major questions doctrine ruling could still have serious consequences. There are many instances in which agencies must rely on ambiguous allocations of statutory authority to resolve important policy questions. Conservatives would be able to use a major questions ruling to challenge agencies in such instances, particularly because a vague line between “major questions” and “minor questions” and between “ambiguous” and “unambiguous” might make it hard to understand the scope of the ruling. (New York University Law professor Richard Revesz’s brief focuses on the “illogical and unworkable new standards” that would come from applying the major questions doctrine to this case).

For climate action advocates, a Court ruling requiring explicit congressional language authorizing the EPA to regulate greenhouse gasses in the energy sector could be devastating. Given current gridlock in Congress, passing such a law would be extremely challenging, and in the meantime, the Biden administration would be prevented from acting through EPA to create new greenhouse gas rules, at least not using the same Clean Air Act provision that the Obama administration had used.

The EPA and its supporters put forward several counterarguments against the major questions doctrine. One interesting attempt to rebut the doctrine came from the Scholars of Congressional Accountability (SCA), who filed an amicus brief in the case. SCA argued that the major questions doctrine relies on the idea that it is easier to hold Congress accountable when it passes explicit laws on major questions than when it passes authority to agencies through more ambiguous laws. The SCA brief found that voters, as an empirical matter, don’t really make choices in this way, meaning that the supposed justification for the major questions doctrine is faulty. Given that most voters don’t closely follow the legislative process, SCA argued that it seems unrealistic to think limiting ambiguous delegation on major questions will lead to a boost in congressional accountability.

Several other briefs supporting the EPA, including one from 192 current members of Congress, argue that Congress intentionally gave EPA authority to regulate the power sector through the Clean Air Act, including in transformational ways. The National League of Cities and U.S. Conference of Mayors made a different but related argumentthat the Court’s own precedents, including a 2011 case concerning EPA authority to regulate greenhouse gas emissions called American Electric Power Company v. Connecticut, have already established EPA’s authority to regulate under the Clean Air Act. The two groups argued therefore that the major question at issue has already been settled and that the major questions doctrine does not apply.

Judicial ‘Deference’ to Executive Branch Agencies

The challengers to EPA rulemaking on this issue raised another argument that could have serious implications for federal agency power. They suggested that courts should abandon a longstanding practice of giving “deference” to Executive branch decisions.

Under current precedents, courts generally defer to federal agencies’ interpretations of the laws that grant their powers where those laws are ambiguous. In this case, the EPA argues that the Court should defer to EPA’s interpretation of the Clean Air Act, an interpretation which gives the agency power to regulate greenhouse gasses.

This practice is known as Chevron deference, named for the 1984 environmental casewhere it was introduced. In recent years, some conservative justices have questioned Chevron deference and have signaled a willingness to overrule it. One of the groups that filed an amicus brief in support of the challengers, the Claremont Institute’s Center for Constitutional Jurisprudence, argues in its most recent brief that the Court should use this case to do away with the Chevron deference.

Doing away with the Chevron deference would be catastrophic for environmental regulation. Chevron is justified in part by federal agencies’ expertise in the areas where they regulate. Allowing agencies like the EPA to interpret complex laws like the Clean Air Act recognizes agency professional civil servants’ extensive knowledge of the regulatory schemes they implement and of the underlying science. If Chevron deference were overturned, courts’ interpretation of ambiguous statutes would routinely win out over the agencies’ interpretations, significantly limiting agency power, especially in light of the many conservative appointees to the federal judiciary in recent years.

Despite conservatives’ growing interest in overruling Chevron deference, there are indications the Court may be unlikely to overrule it in this case. Tellingly, only one amicus brief (out of fifteen filed in favor of the challengers) argued for overruling Chevron, and none of the challengers themselves made this argument. While Chevrondebates are certainly something to watch for in future years, this relative silence on the issue suggests that the challengers do not think overturning Chevron is likely to happen in this case.

A Few Observations and Takeaways

As with so many hot-button cases in recent years, the outcome of West Virginia v. EPA seems likely to come down to the moderate conservative Justices who represent the swing votes on the current Supreme Court. Both sides’ briefs seem to try to appeal to these Justices.

The federal government under President Biden emphasized judicial modesty through its standing arguments. The challengers emphasized the separation of powers and possibility of limiting the administrative state through their major questions doctrine arguments. But they largely stopped short of making more sweeping and controversial arguments involving the nondelegation doctrine and the possibility of overruling Chevron deference. Both sides couched their arguments in textualist terms, the preferred interpretive method of the Court’s six conservative Justices.

If “swing” Justices, such as Chief Justice John Roberts, decide not to involve the Court in a highly controversial case for the sake of preserving its institutional reputation, the case could be decided on grounds of the challengers’ lacking standing. If they instead choose to reach the merits, a major questions doctrine ruling may appeal to moderates more than nondelegation or Chevron deference rulings. The Court alternatively could decide the case on narrower grounds entirely, perhaps focusing only on the text of the Clean Air Act provision in question and limiting the implications of the case for other federal agencies.

The oral arguments before the Court, scheduled for February 28, may shed some light on individual Justices’ thinking. But only time will tell whether this case will change the landscape for greenhouse gas regulation and for federal agencies more broadly. A Court decision on the case likely will not be issued until close to the end of the current term in June.

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  1. Glossolalia

    I think at least five of the SCOTUS justices are sitting around waiting to be raptured. When the kingdom of heaven could come any day why worry about the state of the environment on earth?

    1. scott s.

      I’m unaware of any Christian theology that suggests you should “sit around waiting to be raptured”. Regardless, it’s time to rein in agency power.

      1. Bill Carson

        Perhaps they think that all of the bad weather, rising temperatures, melting ice caps and such, rather than being evidence of climate change are instead signs that the apocalypse is near:

        “There will be signs in the sun and moon and stars, and on the earth dismay among the nations, bewildered by the roaring of the sea and the surging of the waves. Men will faint from fear and anxiety over what is coming upon the earth, for the powers of the heavens will be shaken. At that time they will see the Son of Man coming in a cloud with power and great glory. When these things begin to happen, stand up and lift up your heads, because your redemption is drawing near.”

        Gospel of Luke, chapter 21, verses 25-28.

        Or perhaps they think that by destroying the earth they can usher in the apocalypse.

    2. swangeese

      I’m a practicing Catholic. There is no rapture in Catholicism, not even for saints. “Left Behind” and its ilk are only believed by a certain Protestant segment and is probably an ever dwindling number at that.

      Christians are called to be good stewards of God’s creation, but fall short like all fallible humans. Lots of us do try the best we can.

      Now there are a lot of Christians that have intertwined Christianity with Captialism. This is not an accident.

      There’s a good book called “One Nation Under God” by Kevin Kruse that starts with how ,after the New Deal, corporations began a propaganda blitz attacking the New Deal and conflating their rapacious brand of capitalism with Christian salvation. The ball really got rolling when the corporations lucked upon a charismatic and morally flexible minister named James W. Fifield jr..

      The book continues on following this movement to the present day, however the point is that you’re fighting decades of propaganda. In Christian conservative circles this means that Capitalism is Godly and anything else is pagan or worse. Granted it’s dichotomous and rough and people’s views vary by degrees on individual issues ,but you get the idea.

      It’s not a hopeless cause, but it’s also not going to be won by snark either. Identity politics really ruin everything.

      When Justices come from the belly of beast so to speak or The Federalist Society in this case, I don’t expect them to be champions of the people regardless of professed creed.

      I do hope the EPA is left alone, but I will also maintain my usual moderate cynicism.

      1. Skunk

        You make many good points here, Swangeese. We should remember that accounts of the early Christians depict Jesus and his followers giving away all their possessions, humbly washing the feet of others, and acting as good Samaritans. It is indeed curious that today’s churches conflate capitalism and Christianity. You provide good background on this.

    3. drumlin woodchuckles

      I don’t believe there is any concept of “Raptured Up to Heaven” in Roman Catholicism, if that is what this comment is seeking to imply.

      I believe the Rapture is a feature of all the Darby-descended flavors of Christianity such as the various kinds of Rapturanian Armageddonism featured by John Hagee and numerous others and their several tens of millions of followers.

  2. BeliTsari

    With Russia, “COVID’s over,” Chi-NA, tens-o-millions precariate workers: uninsured, fucked-up beyond diagnostics, indentured into virtual share-cropping, loved-ones dead, chronic PASC far worse each re-re-reinfection, surprise ER, ICU, drug, Hospice, final expense bills AND 98.76% of our fellow citizens TOTALLY brainwashed… EVs, PV, efficiency being stomped down; I’m awaiting a full-court press FOR bio-gas, biomass, “clean” coal, bridge fuel, bailing out decaying fission reactors, GE Monoculture & CAFO, Hydrogen, dilbit, LNG, ethane cracker cogen and geo-engineering scams (basically, WHY Mike, Jeff, Gates, Elon… everybody’s staked out “it’s TOO late for silly hippy mitigation, TRUST our Science Based pragmatic, grown-up solutions!”



  3. Bart Hansen

    “Let’s Play Two” the famous saying of baseball player Ernie Banks might be applied to the current supreme court if the president would nominate two persons, not one, to the court.

    Then Roberts would have to choose for each case whether he has the balls and strikes to even out the decisions. “Let’s Name Two!”

    This would make up for Obama’s great error in not marching Garland up to the court accompanied by U.S. Marshalls, seating him and forcing a constitutional crisis.

  4. drumlin woodchuckles

    The Upper Class Occupation Regime’s pet Supreme Court will find a way to rule that CO2 is not a pollutant because it is a naturally occurring-in-nature compound. They will therefor find a way that neither EPA nor anyone else has any right to regulate it under any existing law.

    That would send the issue back to Congress for the ” We Dig Coal” Republicans and the Sinemanchin Democrats to address the problem with legislation . . . or not.

    1. Bill Carson

      I tend to agree with you: the Court will find a way to gut environmental regulations. The only thing I’m uncertain of is how many concurring, dissenting, and concurring in part and dissenting in part opinions will be issued.

      In the recent “National Federation of Independent Business v. Department of Labor,” the Court held that the President’s “vaccination mandate” (in reality it was no such thing) was too broad because it affected things that happen not only in the workplace but also during their time off.

      In a 2015 case, “Michigan v. EPA,” the Court found a way to nix the EPA’s rules on mercury emissions from power plants, claiming that the agency hadn’t sufficiently considered the cost of the regulation, when in reality the EPA did do a cost/benefit analysis. And that was back when Ginsberg was on the Court and conservatives held a 5-4 majority and not today when they hold an overwhelming 6-3 advantage. I’ve mentioned before an excellent podcast that critically analyzes SCOTUS decisions, and the podcast’s discussion of the Michigan case can be found at


      A transcript is posted on the website for those who would rather read than listen.

      1. drumlin woodchuckles

        Thanks for this.

        People who consider manmade global warming due to carbon skyflooding and skydumping of other greenhouse gases to be a real thing should do their best to anticipate what “could happen” under the ongoing relentless warmup regime, and prepare for it as best as they can.

        They should also keep their preparations as secret as possible from those people who support global warming by supporting carbon skyflooding and other-gas skydumping. The people who make such survival preparations necessary have no right to benefit from any of those survival preparations. Or even know about them.

  5. Susan the other

    If anything the EPA has been too lax. Captured. And we all know West Virginia is whistling past the graveyard. But there could now be a majority of judges so removed from actual reality that they tesselate endlessly about the ripeness of an absolutely obvious issue; or try to pass the buck by saying it is the ultimate responsibility of the most irresponsible body in the history of government (Congress), and argue tediously over the required explicit legislation not being explicit enough. Is it possible to get the Supremes to make other bizarre fatuous judgements? Have them nullify the next martial law or war declaration because it isn’t explicit enough, because the emergency isn’t ripe enough? What if it were imperative beyond any doubt that we had to change our commercial activity so we could survive climate change – that we effectively had to make profits illegal? Would they stammer and drool? There are lotsa really frightening possibilities out there these days that the Supremes could totally screw up by being just too above the real world to deign to deliberate in a common sense manner. And I’m not very impressed with the EPA; just far less impressed with the Supremes. When common sense and cooperation fail anarchy isn’t far behind.

    1. drumlin woodchuckles

      People who choose to understand the physical problems in the reality-sphere should help eachother survive the unfolding problems as best as possible. People who deny the existence of the problems should be cut loose as much as possible and kept unaware and uninformed about personal and group survival-preparation efforts . . . . so that they cannot rally to sabotage those efforts.

  6. Bill Carson

    If clean air and climate change were such big deals, how come they aren’t mentioned in the Constitution? Duh! –Clarence Thomas’s inner child.

  7. Molon labe

    Probably an unpopular opinion (I should note that I favor clean air and am concerned about greenhouse gases), but it took a heck of a stretch to claim that Congress intended CO2 to be regulated—much like the Supreme Court penumbras and emanations favoring abortion. We should hold the legislative branch’s feet to the fire to address both. No one should be happy to have the judiciary decide these issues, even if you are happy with the outcome.

    1. Dwight

      I agree – greenhouse gases different from traditional pollutants. But Supreme Court twice recognized EPA authority and should follow its precedent.

    2. Ben

      Yes, instead of agreeing that CO2 was a pollutant, the SC might have focused on soot, clearly a product of burning coal, and which is said to increase atmospheric absorption of heat when it falls on arctic ice. The problem is that soot in the air interferes with the rays of the sun, and the gradual cleaning of the air over our cities in the last half century, which has been significant and generally healthful, registers as incremental global warming. Hard to know what to do, other than an exploration of fourth-generation nuclear generation, able to eat its own waste, and based on thorium, which is not subject to the same melt-down problems.

  8. Skunk

    I don’t know much about this, but am assuming a decision to limit the authority of federal agencies would cause some of these powers to defer to the states. On the other hand, the atmosphere is a commons, and can hardly be managed at the state level. If anything, it seems that greenhouse emissions need to be tackled at a higher level than the individual nation-state and its federal agency apparatus. Deferring to states would be going in the wrong direction.

    1. drumlin woodchuckles

      “International cooperation” is where fond hopes go to die. Communazi China is playing a high-stakes game of skycarbon chicken with the rest of the world. Kicking the can over to “international cooperation” gives Communazi China total and sole power to decree the total extermination of all industry in every other country in the world except Communazi China, which will decide that it will be the only country in the world allowed to make things. Don’t believe me? Try “international cooperation” for the next couple decades and see if I turn out to be wrong.

      In a perfect world, Deep Greenists would take over the U S government and institute an approach of National Greenism in One Country. We would reject every Free Trade Agreement and withdraw from every Free Trade Organization. We would then be legally free to institute rigid belligerent Carbon Protectionism. We could institute the Full Metal Hansen FeeTax Dividend Plan within the borders of America and we could ban trade with any country which fails to do the exact same thing. We could restore a survival-amount of thingmaking industry within the US operating more carbon-efficiently than the industry of our carbon dumping trading enemies like Communazi China and we would ban their carbon-dumping production from entering our country.

      And of course any country with even HIGHER standards of carbon skyflooding restriction than we would have under National Greenism in One Country could ban our products from entering THEIR country. Until we raised our carbon control up to THEIR level.

      That would be a way to create a forced march to the top instead of the race to the bottom we now have.
      “International cooperation” is a filled-up unflushable toilet. But those who feel otherwise are free to advocate for “international cooperation” and if they can get enough people to believe it, then America can join all the other countries of the world in swimming in the toilet of “international cooperation” together.
      That too is a choice.

  9. drumlin woodchuckles

    In general we should always remember this paraphrase of what the old Yoda said to the young Luke Skywalker . . .

    ‘We’? Us or Us not. There is no ‘We’.

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