West Virginia v. EPA And The Future Of Tech Regulation

• Published date: 19 July 2022
• Subject Matter: Environment, Media, Telecoms, IT, Entertainment, Technology, Environmental Law, IT and Internet, New Technology
• Law Firm: Wiley Rein
• Author: Mr Boyd Garriott, Megan L. Brown, Thomas M. Johnson, Jr., Joshua S. Turner and Tyler Bridegan

This term, in West Virginia v. EPA, the U.S. Supreme Court held that the U.S. Environmental Protection Agency (EPA) could not compel a nationwide shift away from coal-powered electricity generation.¹ The Court reasoned that it would not presume that Congress delegated a decision of "such magnitude and consequence" to the EPA absent a clear statement.² This decision - and its invocation of the major questions doctrine - portends that regulations governing broadband, as well as new and emerging technologies, may now be more vulnerable to legal challenges.

The Supreme Court's Decision

West Virginia v. EPA is a case about the EPA's regulatory authority under Section 111 of the Clean Air Act.³ That provision permits the EPA to set "standards of performance" for new power plants.⁴ It also contains an ancillary clause that requires the EPA to set "standards of performance" for existing power plants - but only where those plants emit pollutants not already regulated under other provisions of the Clean Air Act.⁵ Under both provisions, the EPA (1) determines the "best system of emission reduction" and then (2) sets emission limits that reflect such a system.⁶

In 2015, the EPA promulgated a rule - called the "Clean Power Plan" - that addressed carbon dioxide from existing power plants.⁷ The Clean Power Plan determined the "best system of emission reduction" for existing plants by analyzing not only what was achievable using new technologies but also what was achievable through shifting generation away from coal power plants to cleaner forms of energy production - such as natural gas, wind, or solar - and through participation in a cap-and-trade program.⁸ The Clean Power Plan then set its emissions limit such that existing coal power plants would be forced to shift to cleaner technologies.⁹

The question before the Court was whether, pursuant to the Clean Power Plan, the EPA could use its ancillary authority under Section 111(d) of the Clean Air Act "to compel the transfer of power generating capacity from existing [coal] sources to wind and solar."¹⁰ The Supreme Court - in a majority opinion written by Chief Justice Roberts - found that it could not and that the EPA had acted beyond the scope of its statutory authority.

The Court's decision rested on its major questions doctrine - an interpretive canon providing that "[e]xtraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices."¹¹ The Court found that...