West Virginia v. EPA—Major Questions and the Future Climate Change Regulation

West Virginia v. EPA—Major Questions and the Future Climate Change Regulation

Tuesday, September 20, 2022 at 8:30 – 10:00 am PDT; 9:30 am – 11:00 am MDT; 10:30 am – 12:00 pm CDT; 11:30 am – 1:00 pm EDT

The Obama-era Clean Power Plan addressed utility sector CO2 (a greenhouse gas (GHG)) emissions under Section 111(d) of the Clean Air Act by requiring states to develop and implement plans to achieve emission performance rates at existing coal-fired power plants and state level rate-based or mass-based goals. To meet these objectives, states could adopt a host of measures, with “building blocks” that included generation shifting and emissions trading outside the “fenceline” of the power plants. The Clean Power Plan never went into effect. Nevertheless, in West Virginia v. EPA, the Supreme Court held that “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach . . . in the Clean Power Plan.” In so holding, a majority of the Court invoked the rarely used “major questions doctrine” to address what it called “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” In this webinar, our diverse panel will address a number of questions arising from the decision, including:

• The extent to which the decision hampers the Environmental Protection Agency’s (EPA) ability to develop new climate change regulations and policies without Congressional action.
• Whether the decision calls into question EPA’s continued authority to regulate GHG emissions from power plants and other sources under the Clean Air Act without an express grant of Congressional authority to regulate GHGs.
• The extent to which the Court defined the contours of the major questions doctrine or left significant questions unanswered.
• Whether the major questions doctrine hampers federal agencies’ ability to exercise their discretion to regulate in an era of congressional deadlock and political division.
• The interplay between the major questions doctrine, the nondelegation doctrine, and Chevron deference in administrative law after the decision.

JENNIFER BIEVER, Director, Williams Weese Pepple & Ferguson, Denver, CO 
DANIEL E. WALTERS, Associate Professor, Texas A&M University School of Law, Fort Worth, TX 
PETER ZALZAL, Senior Counsel and Associate Vice President for Clean Air Strategies, Environmental Defense Fund, Boulder, CO