West Virginia v. EPA: Was “Major Questions” Necessary?
The Supreme Court held in West Virginia v. EPA that the federal agency did not have authority to adopt what amounted to a cap-and-trade system for existing fossil-fueled power plants because this raised a “major question” of “economic and political significance” as to which Congress had not clearly delegated authority to the EPA. But a close reading of the relevant statute, Section 111 of the Clean Air Act, indicates that the EPA has no authority to issue legally binding emissions standards for existing stationary sources—period.
So the Court did not have to create a novel legal doctrine to limit the authority of the Biden Administration to adopt something like the Clean Power Plan. It could have reached the same result simply by paying close attention to the language of the statute that purportedly granted such authority. This second of five guest blog posts on the decision makes this case (here was the first one, suggesting that the decision was an advisory opinion).
We need to know a bit about the statute: When Congress adopted the modern form of the Clean Air Act in 1970, the central regulatory mechanism was a classic exercise in cooperative federalism. The Act required the EPA, in Section 109, to promulgate National Ambient Air Quality Standards (NAAQS), setting forth permissible limits on the ambient concentration of certain key air pollutants. Once these NAAQS were established, the states were required, under Section 110, to develop State Implementation Plans (SIPs), setting forth a strategy for achieving the federal standards.
The federal agency was directed to review the SIPs to make sure they were adequate, and if a state utterly failed to promulgate an adequate SIP, the EPA could step in and promulgate a plan for the state. But the core idea was that the federal government would set the air quality standards and the states would have substantial discretionary authority to develop a regulatory plan to meet these standards, taking into account the circumstances of each state.
The Act also gave the EPA authority to set direct control standards on sources in a number of situations, including emissions standards for hazardous air pollutants and for mobile sources like automobiles. And, of relevance to the issue in West Virginia, Congress gave the EPA authority, in Section 111, to establish direct controls on certain categories of new stationary sources discharging pollutants that can endanger public health and welfare.
Having instructed the EPA to establish the NAAQS and having authorized the EPA to create direct emissions standards for hazardous pollutants and mobile sources, why did Congress also give
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