The Supreme Court's decision in West Virginia v. EPA undoubtedly constrains the Biden Administration's efforts to reduce greenhouse gas emissions. While the decision does not curtail the EPA's traditional air pollution control authorities, it does make it more difficult for the agency to repurpose provisions drafted to address traditional air pollutants so as to limit greenhouse gases. The decision could constrain other agency efforts to foster climate mitigation as well.
One regulatory proposal sure to get additional scrutiny in the wake of WVA v. EPA is the Security and Exchange Commission's proposal to "enhance and standardize climate-related disclosures for investors." In today's Wall Street Journal, former SEC Commissioner Paul Atkins and former OIRA Administrator Paul Ray make the case that the SEC's proposal is likely to be struck down in light of the WVA decision. According to Atkins and Ray, the SEC is seeking to repurpose pre-existing statutory authority to address a new concern outside of the SEC's core expertise. In other words, it is seeking to pour new wine out of old bottles, and this is something the Court rejected in WVA (as well as in its decision invalidating the OSHA test-or-vax mandate).
From the Atkins and Ray op-ed:
