The most recent attempt to take down the Affordable Care Act foundered due to a lack of Article III standing. Could the same thing happen to the current challenge to the Environmental Protection Agency's authority to regulate greenhouse gases from the electricity sector? Perhaps.
On February 28 the Supreme Court will hear oral argument in West Virginia v. EPA, in which a coalition of states and coal producers are challenging the scope of the EPA's authority to regulate GHG emissions from power plants under Section 7411 of the Clean Air Act (often referred to as Section 111). Among other things, the petitioners argue that the EPA lacks the authority to consider how utilities can reduce GHGs by shifting to alternative power sources (including renewables) and adopting other "outside the fenceline" changes. Rather, they maintain, the EPA is confined to imposing more traditional emission control requirements (such as the installation of emission-reducing technologies at emitting facilities). Further, the petitioners argue that any implication that the EPA has broader authority is precluded by the "major questions" doctrine, as Congress would not have delegated broad authority to reshape the power sector without explicitly saying so. Given the current composition of the Court, and its recent rejection of OSHA's authority to impose an emergency COVID-19 vax-or-test mandate, must suspect a majority will be open to these arguments.
Because the decision below invalidated the EPA's prior regulation under Section 7411, the Supreme Court's grant of certiorari was a surprise. In American Lung Association v. EPA, the U.S. Court of Appeals for the D.C. Circuit invalidated the Trump Administration's repeal of the Obama EPA's Clean Power Plan and adoption of a far-less-stringent alternative, the Affordable Clean Energy rule. The court then stayed its mandate, so as to allow the EPA the opportunity to come up with a new regulation, as EPA has no interest in seeking to vindicate the ACE rule or to reimpose the CPP.
