• Hannah Martin

The Future of Pollutant Politics


Rally at Supreme Court post-West Virginia v EPA decision. Source: Sierra Club


During an era where climate change and its impacts on future generations are very prominent, the Supreme Court of the United States took away the Environmental Protection Agency’s authority to direct power plants away from fossil fuels and towards clean energy sources. On June 30, 2022, in a 6-3 vote, the Supreme Court voted against the EPA in the West Virginia v.s. EPA case. This decision is limited to power and electricity sources, so the EPA maintains the authority previously held for all other regulations. However, the new precedent based upon this decision can have a more significant influence on the EPA and other executive agencies in future Supreme Court cases.


The EPA is a regulatory agency that “protects people and the environment from significant health risks, sponsors and conducts research, and develops and enforces environmental regulations.” Since the agency's creation in 1970, the EPA has been the primary actor regulating pollutants in the United States. Typically, this agency has a large amount of influence regarding global warming regulations, including ones that directly affect the use of fossil fuels.


Throughout the Trump administration, the agency lost an exceptional amount of influence. The EPA was forced to reevaluate definitions of federally protected wetlands under the Clean Water Act in 2017, and states were given more power over emission regulations, whereas the EPA weakened methane-flaring regulations in 2018. Additionally, environmental arrests are the lowest it has been in 30 years, and the actual size of the EPA has decreased steadily. As the government continues to transition to the Biden administration, the agency is not gaining back much power. The WV v. EPA decision refers to the Affordable Clean Energy (ACE), which replaced the Clean Power Plan (CPP) in 2019. The CPP was similar to the ACE in providing emission guidelines on a state-by-state basis. The CPP was repealed by the EPA because it was determined to exceed the agency's appropriate influence. The overarching goal of ACE is to limit and regulate carbon pollutants by providing state carbon emission guidelines; however, it serves as a guideline rather than a definitive law. This decision also refers to the Clean Air Act of 1963, which requires the EPA to regulate all dangerous pollutants, including but not limited to carbon dioxide.


The majority opinion written by Chief Justice John Roberts explains that the “Major Questions” doctrine had a great influence on the WV v. EPA decision. The doctrine states that federal agencies can not implement major and influential decisions without explicit direction from Congress. The “Major Questions” doctrine had never impacted or regulated the authority of the EPA prior to this decision. Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas joined Chief Justice Roberts in the majority vote.


Justice Elena Kagan wrote the dissenting opinion and implied that Congress purposely offers broad instructions to federal agencies for agencies to have the ability to react to a quickly and ever-changing society in an effective and efficient way. Liberal justices Stephen Breyer and Sonia Sotomayor joined Justice Kagan in the dissenting vote.


Although the WV v. EPA decision only directly impacts one regulatory aspect of the agency, the effects are significant. Energy sources accounted for approximately 32% of the United States’s carbon emissions in 2021. As the WV v. EPA decision takes effect, Congress will either have to take the leading initiative or explicitly grant the EPA the ability to regulate power plant pollutants' use of fossil fuels. If neither of these actions occurs in a timely manner, it is likely that electricity sources will progress without much regulation.


Due to the limited use of the “Major Questions” doctrine prior to this court case, there is considerable confusion about why the U.S. Supreme Court decided to base the majority decision on this doctrine. Setting this precedent could have a significant impact on other federal agencies and change basic governmental organizations in the United States. A conservative political podcast entitled “On Point” further explains how this decision could impact other agencies and other aspects of politics. In this episode, former New Jersey Governor and EPA administrator Christine Todd Whitman explains that this Supreme Court decision could impact other federal agencies, such as the Food and Drug Administration, which is responsible for ensuring the safety of American food, pharmaceuticals, and other products distributed throughout the country. The precedent set by the WV v. EPA decision would require Congress to hold greater control over all federal agencies, including ones like the FDA which greatly influence an American’s daily lifestyle. This possibility of major organizational change at the congressional level, which will slow down the timeline of influential decisions, is what will impact the citizens of the United States the most. Whitman continues by stating Congress often takes too long to react within a reasonable timeline. She also mentions the lack of particular expertise in the House of Representatives and the Senate when referring to specific circumstances and regulations that often require a certain level of specialization. In the same episode, Paul DeCamp, former senior policy advisor for the Department of Labor’s Wage and Hour Division of the United States, agrees that this precedent will likely apply to other agencies. DeCamp states that agencies will have to adhere to the “bounds of Congress” rather than continuing with the typical model of self-regulation with the assistance of general guidance.


Opinions may vary based on whether this decision will have primarily positive or negative impacts. Some politicians agree with the dissenting opinion that this type of restriction may result in slow and ineffective processes. Issues will have to encounter timely debate within Congress before agencies can take necessary action, even if the issue needs a simple solution. Additionally, this side of the argument questions whether there is specific expertise present in Congress in issues relating to smaller subcategories of government. On the contrary, some believe that the WV v. EPA decision will successfully reign federal agencies within boundaries, allowing for Congress to have the control necessary for a government to run appropriately. Regardless of personal opinions, this precedent is bound to open doors for discussion and will be prominent for the future of all federal agencies within the United States government.