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  • Writer's pictureJosh Schultz, Esq.

Impending Supreme Court Decision Will Impact Clean Air Act, Deference to Federal Agencies

The U.S. Supreme Court is expected to announce a decision soon in West Virginia v. Environmental Protection Agency, a case which has implications far beyond the EPA. In this case, the Attorney General of West Virginia, in conjunction with other states, is challenging the scope of the EPA's authority to regulate greenhouse gas emissions from power plants under Section 111 of the Clean Air Act. The case involves a number of legal issues, but most notably it could impact courts’ deference to administrative agencies such as OSHA and MSHA.

The case originates with an Obama administration rule issued in 2014 called the Clean Power Plan ("CPP"), requiring a 32 % reduction in carbon dioxide emissions from electricity generation by 2030. States would have been required to submit implementation plans by 2018 with enforcement to start by 2022. Twenty-eight states and multiple companies immediately challenged the Clean Power Plan in the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit"). The rule never took effect, as the Trump administration paused and eventually repealed the rule before D.C. Circuit ruled on the challenge to the CPP.

In repealing the CPP, the Trump administration issued a new rule, the Affordable Clean Energy rule, which targeted a lesser reduction of of carbon dioxide emissions by 2030 (between 0.7% and 1.5%). This rule was challenged by the American Lung Association and the American Public Health Association and over 170 other groups, including twenty three states, in the D.C. Circuit, which vacated the Trump ACE rule and its repeal of the CPP. West Virginia and 19 other states appealed the D.C. Circuit's ruling to the Supreme Court, who is expected to issue a decision on the case in the coming weeks.

There a number of important legal issues which may determine the outcome of this case, including whether EPA has the statutory authority to regulate greenhouse gasses and whether West Virginia and other states have standing to sue when there is not an active rule in place. But perhaps most pertinent for businesses regulated by multiple federal agencies is whether the Court will overturn or modify "Chevron deference", the doctrine of judicial deference given to actions taken by federal agencies. This doctrine was created by a 1984 Supreme Court case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., in which the Court created a legal test to determine when courts should defer to an agency’s interpretation of a statute or rule. This test prescribes that that such deference to an administrative action is appropriate where the agency’s answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question.

Conservative think tanks have been increasingly vocal about their disapproval of the power of administrative agencies and have particularly targeted Chevron deference. An amicus brief filed in support of the West Virginia's challenge urges the court to overturn Chevron deference. A brief filed by the Claremont Institute’s Center for Constitutional Jurisprudence argues that "deference to an agency’s interpretation of a statute has administrative agencies usurping the judicial role of interpreting legal texts and the congressional role of enacting legislation. If the legislation is so vague as to have multiple or no discernable meaning, the agency is effectively exercising Congress’ lawmaking power when it 'interprets' the legislation."

Groups in favor upholding Chevron deference argue that overturning the doctrine would substitute federal agencies’ expertise in the areas where they regulate with the opinions of less-informed judges. Court observers predict a low likelihood of the Court overturning Chevron, but it will remain a target with a conservative majority on the bench for years to come.

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