Pat Murphy and Jason Boleman
BridgeTower Media Newswires
A recent U.S. Supreme Court decision that cast aside an Obama-era climate change initiative has sparked discussion among environmental law attorneys.
In its June 30 decision in West Virginia v. Environmental Protection Agency, the court crafted the “major questions doctrine” to set aside the Clean Power Plan adopted by the U.S. Environmental Protection Agency in 2015. The CPP proposed to reduce carbon dioxide emissions from existing coal- and natural-gas-fired power plants through what the EPA termed “generation shifting.”
The generation shifting involved power plant operators shifting electricity production from higher-pollutant-emitting to lower-emitting fuels over time, with the ultimate aim of transitioning production from coal to natural gas and renewable energy.
In its 6-3 ruling, the Supreme Court invalidated the EPA’s generation-shifting rule on the basis that it was not authorized by the Clean Air Act, rejecting the agency’s argument that the CPP rule — including its requirement that coal-fired power plants reduce production of electricity or subsidize generation by natural gas, wind or solar sources — was authorized by §111(d) of the act.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Chief Justice John G. Roberts Jr. wrote for the majority. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d).”
The decision was seen by some attorneys as marking a change of course in the deference federal judges afford rulemaking by the EPA and other federal regulators.
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Major questions doctrine
“I’m not sure that it’s clear at all that anybody really knows what a major question is and what the distinction is between a major question and one that’s not,” Roanoke environmental law attorney Charlie Williams said.
Williams, who heads the environmental law practice at Gentry Locke, noted the uncertainty could extend into the agencies themselves.
“It’s going to create an opportunity for lots of people to challenge regulations that have not been challengeable before,” Williams said. “I can foresee there being lots of confusion.”
Roanoke attorney Maxwell H. Wiegard, a member of the Virginia Bar Association Environmental, Natural Resources and Energy Law Section Council, echoed Williams’ sentiments.
“I think this is a drawing of a relatively bright line in some senses and in other senses I think it has created a lot of confusion,” Wiegard said. “Clearly, the Supreme Court is drawing a line here and saying, ‘We’re going to need to see direct statutory authority for regulations that we view as expanding any sort of program.’”
Washington, D.C., lawyer Jonathan D. Brightbill argued the case in the D.C. Circuit on behalf of the government as an acting assistant attorney general with the U.S. Department of Justice during the Trump administration.
While at the Department of Justice, Brightbill advocated a position along the lines of the holding that was ultimately adopted by the Supreme Court majority.
“The Supreme Court confirmed that this type of major rule requires a clear statement of congressional authorization,” Brightbill said.
But Williams noted that the Supreme Court’s ruling impacts the process of rulemaking. Typically, Williams said, “legislatures enact statutes, which basically say what the policy is and what the overarching objective is.”
But, Williams added, the legislatures often left “[filling] in the blanks” to the appropriate agency.
“[The ruling] would likely really frustrate the whole process of rulemaking, [now that] these agencies are going to try to figure out whether something is a major question or not,” Williams said. “So there will be lots of questions as to whether or not they can promulgate rules, which will only delay things and make things potentially a whole lot worse.”
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‘Chevron’
In its 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, the Supreme Court enunciated the oft-used standard for determining when courts should defer to an agency’s interpretation of a statute that it has been tasked by Congress to administer.
Generally, under Chevron, federal courts must defer to a federal agency’s interpretation of a statute when the language of the law is ambiguous and the agency’s interpretation is “reasonable.”
Over the years some have advocated discarding the Chevron deference doctrine, but the Supreme Court has refused to do so. Roberts made no mention of Chevron in the West Virginia majority opinion.
“Whether or not [the major questions doctrine] runs into conflict with the Chevron doctrine I think is an open question,” Wiegard said.
Williams, meanwhile, said he does not view West Virginia as a “threat” to Chevron.
“Chevron does, in my view, nothing more than parrot back one of the principal concepts of administrative law that is developed over many, many years, that there is a differential treatment of the actions of a regulatory agency,” Williams said.
“To undo Chevron would completely unravel the whole notion of administrative law and administrative law process,” he continued.
Brightbill said it would be an overstatement to believe the Chevron deference doctrine is “dead” in the wake of this latest decision.
“This opinion does nothing directly to change the Chevron doctrine or implementation of Chevron deference,” Brightbill said. He added that West Virginia will likely affect how courts review rulemaking and lead to courts granting agencies Chevron deference less often.
Boston attorney Jeffrey R. Porter said he sees West Virginia as “muddling” the question of the future of Chevron.
“Ever since the conservative majority has come into power, the Supreme Court has been very careful not to overrule Chevron,” Porter said. “But to me, it requires legal minds much smarter that mine to appreciate the practical difference between saying we’re not going to overrule Chevron, but if we don’t see in a statute specific authorization that an agency can do something, then we’re finding that the agency doesn’t have the ability to do it.”
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Local impacts
Locally, Wiegard said the VBA is planning a CLE presentation on West Virginia to cover this “significant development.”
“I think we’re all wrestling with what the implications will be in Virginia,” Wiegard said.
As for now, Wiegard said he anticipates Virginia’s environmental lawyers will see increased requests from clients to push back on regulations they may believe are beyond the scope of what Congress intended.
“I think that everyone needs to understand how this changes the legal landscape and what, if any, grounds for defense of some of our regulated entity clients it may present,” Wiegard said.
Williams noted West Virginia deals strictly with federal agencies like the EPA and does not explicitly affect the laws passed by state legislatures like the General Assembly.
“There are lots of environmental statutes that are very similar to federal law, but they are state statutes that are specifically enacted by the state legislature,” Williams said. “The question might be, ‘Does the West Virginia case affect those at all, whether or not they are similar to the federal law?’”
Wiegard said, in the short-term, it is unclear how much West Virginia affects Virginia’s legal landscape and it will likely take “a couple of years” to know more about potential effects.
“The goal of [the VSB Environmental Law Section] is to make our Virginia attorneys aware of it, as a first step to determine how it will ultimately impact law in Virginia,” Wiegard said.
Because of West Virginia, Wiegard also said he foresees greater involvement in the legislative process than before by some who seek specific regulations.
“I think our clients and our lawyers and lawyers in Virginia giving legal advice may take that into their analysis of the practical side of how to respond to this ruling,” he said.
