West Virginia v. EPA will long be remembered as the decision in which the Supreme Court officially endorsed the "major questions doctrine," as Jonathan Adler has noted on this blog. In this series of five guest blog posts (this being the first), I will get to that in due course.
But the briefs and the oral argument were also concerned with whether the case was justiciable. The government argued that West Virginia and the coal producers had no standing, that the case was moot, and that the Court was being asked to render an advisory opinion. The majority opinion by Chief Justice Roberts spent little time in swatting these arguments aside, and Justice Kagan's dissent showed little interest in them—although at one point she casually referred to the Court's decision as an "advisory opinion."
It is tempting to dismiss these threshold issues as technicalities, and move on to the main controversy. But I think that the government was right that the Court was being asked to offer an advisory opinion, and that this is in fact what the Court did.
