Policy experts debate EPA’s options to address climate change going forward.
On June 30, the U.S. Supreme Court decided a climate change related case that invoked the “major questions doctrine” to determine that the U.S. Environmental Protection Agency (EPA) had overstepped its authority under the Clean Air Act Section 111 to force an energy generational shift away from coal (West Virginia v. EPA). In the aftermath of this ruling, policy experts have been discussing whether this prohibits EPA from taking regulatory action to address climate change and whether the major questions doctrine will be called into play more frequently. Another recent example of the Court applying the doctrine is when it halted enforcement of the COVID-19 vaccination and testing emergency temporary standard.
The Court removed an approach that EPA may have taken in addressing climate change, but it did not close the door on future regulation. Central to this case, EPA tried a novel and transformative approach in its 2015 Clean Power Plan rule (never fully implemented) that would have had a large impact on the nation. If Congress had intended the agency to take such sweeping measures, then they would have used clear language in the statute, according to the justices in a 6-3 opinion written by Chief Justice Roberts.  Notably, the Court did not state that EPA does not have the authority to address climate change. Nor did the Court change its earlier ruling in Massachusetts v. EPA (2007) that confirmed the agency can regulate greenhouse gas emissions from motor vehicles as a pollutant.
In the near term, regulations of “magnitude and consequence” that take a new approach may warrant a closer look under the major questions doctrine. For example, certain agency actions under the Biden Administration’s “all of government” approach to climate change may face greater scrutiny if the agency deviates from its normal scope and authorities and the result would be impactful. The Securities and Exchange Commission’s proposal to expand its financial reporting requirements to include highly detailed reporting of climate risks and emissions data could face challenges implicating this doctrine.
For more information, contact Melinda Tomaino at [email protected].
 Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” New York v. United States, 505 U. S.144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. Slip Opinion, pg. 31.
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