West Virginia v. EPA Breakdown Part 1

In this episode of the Bracewell Environmental Law Monitor, host Daniel Pope talks with Bracewell partners Jeff Holmstead and Jeff Oldham about the recent Supreme Court ruling in West Virginia against the EPA and its implications for environmental law. environment and more broadly for administrative law. This is the first of a two-part episode dealing with this decision.

Jeff Holmstead is a partner in our Environment, lands and resources group that joins us from our office in Washington DC. Jeff Oldham is a partner in our Litigation and appeal practice group in Houston and Austin.

Could you explain the issues that were presented in the West Virginia court against the EPA and just set the stage for us?

The problem really revolves around a rule that the Obama administration issued in 2015 called the Clean Power Plan. It was enacted under section 111(d) of the Clean Air Act, a provision that had only been used three or four times before because it only applies to pollutants that are neither pollutants hazardous air pollutants or criteria air pollutants. And since almost everything you can imagine is one or the other, Section 111(d) is rarely used. It was used because CO2 is neither a PAH nor a criterion pollutant. And historically, it had only been used again in a handful of cases to get existing facilities to install pollution controls. The EPA has determined that when it comes to reducing CO2, it was really not possible. And instead, he creatively read the law to demand what they call a generational change.

So, in essence, it created a rather complicated system that over time would cause coal-fired power plants to produce less and shut down. I can’t remember the exact number of factories they expected to close as a result of the case, but it was a pretty big shift from coal to natural gas and then even more to renewables .

How did the Supreme Court approach the major issues doctrine in its majority opinion? Can you tell us where this is and what is the state of the major issue doctrine today after this case?

The next time the court will say something about the major issues doctrine is when we can talk about what the major issues doctrine is because it’s something that, on the charge of dissent , had never been applied before, at least in name. By my calculations, it’s been applied potentially three times in the last 12 months if you look at some of the cases and what they cited. Thus, it appears in the dissent charges that this is the first case in which a majority of the court has actually applied the major issues doctrine by name. They cite a number of instances where it comes from. These cases are those that include, just last year, the CDC eviction moratorium case, the OSHA vaccine mandate case, and then a number of other cases going back decades to find out if the FDA can regulate tobacco, or things like that.

Any thoughts on Judge Gorsuch’s agreement and where the court might take advice from his remarks in the future?

Well, he certainly tried to tie it to a much longer course of Supreme Court precedents than in decades past. But I think what struck me as remarkable about the agreement was just the breadth of what the agreement tried to take in terms of both the foundation of that principle and the separation of powers . And then also, talk more about the history of the doctrine. But also the agreement tried its hand at the list of factors, both the list of factors of when you might have a major issue and once you get to the major issue, when a congressional statement is- it clear enough. And these lists are somewhat related to each other. These aren’t really independent lists in terms of when you have a major issue and when Congress speaks out pretty clearly.

One of the questions I had after reading the opinions was whether the major issues doctrine is something the Supreme Court can use, or is it something that district and circuit court judges can also use?

I see no reason why only the nine justices would have the power to apply the major issues doctrine, so I think this will be an argument regularly made in district courts and circuit courts. And it will be interesting to see how that evolves over the administrations. Currently, some states frequently challenge the actions of the federal government and their agencies, and we have seen this in recent administrations. So it will certainly be interesting to see how it is used in cases and how many cases make it all the way to the Supreme Court.