Climate Break

Short: What W.Va v EPA means for US Climate Action, with Dan Farber

Episode Summary

Listen to environmental law expert and UC Berkeley School of Law Professor Dan Farber describe how the supreme court's ruling in West Virginia v. EPA is likely to affect US climate policy options. This episode is an excerpt of Professor Farber's full conversation with Ken Alex, which is available at climatebreak.org or wherever you get your podcasts. For a transcript, please visit https://climatebreak.org/what-does-west-virgina-v-epa-mean-for-environmental-policy-with-professor-dan-farber-and-ken-alex/

Episode Notes

West Virginia v. EPA

The U.S. Supreme Court issued its decision in West Virginia v. Environmental Protection Agency on June 30, 2022, determining (in a 6-3 ruling) that, without explicit congressional instruction, the EPA cannot curb emissions at existing power plants by forcing a change to renewable energy sources (as opposed to directing specific emissions reductions from the power plants themselves). Chief Justice Roberts, writing the majority, declared that mandating a switch to renewables is such a major shift that it falls under the “major questions doctrine.”  That doctrine – which is a creation of the Supreme Court – has not been fully developed, but has been presented as a limit on the power of the Executive Branch, requiring Congress to provide specific direction through legislation before the President may act.  What constitutes a “major question” and when it is to be invoked is unclear.  

The West Virginia case involved a regulation from the Obama-era that called for reduction of greenhouse gas emissions from coal fired power plants, which could take the form of replacement of those plants with renewable energy. That regulation was withdrawn by the Trump administration, which issued a regulation much more limited in scope. The Biden administration then withdrew the Trump-era regulation and is working on a new regulation. So, the Obama-era regulation at issue in West Virginia was not operative, which would normally make the case moot. The Supreme Court ruled, however, that because the rule could be reinstated, the case could proceed, underscoring the majority’s strong intent to create the major question doctrine.  The doctrine is presented as a check on executive power, but also represents a potentially significant expansion of judicial power. It is the Court that apparently will decide the parameters of what constitutes a major question, when and under what circumstances it will be applied, and when the President needs explicit authorization from Congress to take action.   

Though West Virginia v. EPA hinders EPA authority, it still leaves open several avenues for effective government climate action. The case does not touch on local and state government ability to regulate pollutants, and does not affect the EPA’s regulation of high-emitting sectors such as transportation. Additionally, this Court decision does not affect new power plants, only existing plants. Though it prevents the EPA from mandating renewable energy for existing power plants, the EPA can still require specific emissions reductions from individual plants. Finally, West Virginia v. EPA highlights the importance of passing effective congressional climate change legislation with explicit authority for the executive branch. West Virginia v. EPA is a further reminder that climate change cannot be fought without bold congressional action. 

For a more detailed discussion, we invite you to listen to the long version of this podcast on this website, and check out the links below.

Who is Professor Dan Farber?

Dan Farber is one of the nation’s most cited and influential scholars of environmental and constitutional law, and is faculty director of the Center of Law, Energy, and Environment at Berkeley Law. After law school, he clerked for Justice John Paul Stevens of the U.S. Supreme Court, giving him an intimate look into the workings of the nation’s highest court. His most recent book is Contested Ground: How to Understand the Limits on Presidential Power (UC Press 2021). Dan Farber is the Sho Sato Professor of Law at the University of California, a member of the American Academy of Arts and Sciences and a Life Member of the American Law Institute.

Learn More

West Virginia v. EPA: A Quick Explainer - Legal Planet

Emerging Answers to Major Questions - Legal Planet

Opinion | The Supreme Court's EPA Decision Is More Gloom Than Doom - The New York Times

The Supreme Court's EPA Ruling Is Going to Be Very, Very Expensive - The Atlantic

West Virginia v. EPA and the Future of the Administrative State - Legal Aggregate - Stanford Law School

 

 

For a transcript, please visit https://climatebreak.org/what-does-west-virgina-v-epa-mean-for-environmental-policy-with-professor-dan-farber-and-ken-alex/

Episode Transcription

Prof. Farber: It's an important case because these existing power plants, especially coal, but also natural gas, contribute a major share of US carbon emissions. We've gotta address those emissions and the Supreme Court clearly has made it more difficult to do that. 

Ethan: What does the Supreme Court's decision in the West Virginia vs. EPA case mean for the future of US climate action? I'm Ethan Elkind, and this is Climate Break. You were listening to Dan Farber, professor at Berkeley Law. Even with the ruling against the EPA, Professor Farber holds a dose of optimism for emission regulations.

Prof. Farber: Nothing in the opinion casts any shade on other things EPA is doing, like regulating methane or regulating emissions from vehicles. I think that there are very likely things that EPA can still do for coal fired power plants. Fortunately the market is moving toward renewable energy, and I think that maybe in the end what saves us.  

Ethan: Professor Farber also says that the Court's ruling now puts the pressure of passing climate legislation on Congress more than ever.

Prof. Farber: They probably could give pretty broad powers to EPA. At some point, Congress is just gonna have to face the reality of climate change and pass climate legislation

Ethan: To learn more about the Supreme Court's decision in West Virginia vs. EPA, listen to the full interview at climatebreak.org.