West Virgina v. EPA: Enthroning or Dethroning a Regulatory Czar?

From MasterResource

By Richard W. Fulmer 

“The Supreme Court’s common sense decision states that federal regulatory agencies cannot bypass Congress and unilaterally impose unprecedented and economically and politically significant mandates. Nor can they ignore their own legislatively-approved mandates, stretching them far beyond what was intended. Finally, they cannot extend their reach outside their own expertise.”

Writing in The New RepublicSimon Lazarus, retired Senior Counsel for the Constitutional Accountability Center, charges that the Supreme Court has appointed itself to be America’s regulatory czar, declaring:

The high court cast aside the peoples’ elected representatives to enact the climate denial agenda of the mega-donors who funded their nominations.

Lazarus rests his case on claims that the Court:

  1. Had no right to take the case
  2. Ignored the clear text of the law – specifically Section 111(d) of the Clean Air Act
  3.  Ignored the interests and stated desires of American utility companies

In making his argument, Lazarus adopted the now-familiar debate tactic of accusing the opposing side of doing exactly what he and his side are doing, namely creating regulatory czars and, in the process, bypassing the country’s elected representatives.


In June 2014, the Environmental Protection Agency (EPA) proposed its Clean Power Plan to address carbon dioxide emissions from existing fossil fuel power plants. The plan gave the EPA the power to order coal-fired plants to reduce CO2 emissions by converting to natural gas and to order natural gas plants to convert to renewable sources such as wind turbines or solar panels. “Conversion” would entail razing the old plant and building a new facility to replace it. Heretofore, the EPA had limited itself to requiring specific emissions controls on existing plants, rather than ordering them to be replaced outright.

In addition, the EPA’s new rule would mandate a cap-and-trade scheme by which existing plants could meet emissions requirements by purchasing emissions credits. This, even though Congress has rejected cap-and-trade schemes in the past.

In 2016, the Court issued a stay on the plan’s implementation stating that it could not go forward until all of the pending legal challenges had been heard. In 2019, under a new administration, the EPA determined that the plan exceeded its authority under Section 111(d) of the Clean Air Act (CAA). According to the Court’s WV v EPA decision:

The Agency determined that the interpretive question raised by the Clean Power Plan fell under the major questions doctrine. Under that doctrine, it determined, a clear statement is necessary for a court to conclude that Congress intended to delegate authority “of this breadth to regulate a fundamental sector of the economy.”

Accordingly, the EPA proposed to replace its Clean Power Plan rule with the Affordable Clean Energy rule that would be restricted to mandating that existing facilities reduce emissions via equipment upgrades and improved operating procedures. The change was challenged by some states and private parties, and an appeals court remanded both plans back to the EPA for further consideration.

In summary, as Cato Institute research fellow William Yeatman writes:

Obama ordered the EPA to issue the rule; Trump ordered the EPA to replace Obama’s rule; and then Biden ordered EPA to replace Trump’s rule. 

What Yeatman terms “executive lawmaking” results in endless regime uncertainty as power in Washington changes hands and each successive president uses his “pen and phone” to bypass Congress.

Should the Court Have Taken the Case?

Lazarus argues that SCOTUS killed an already dead plan. But, if all the Court did was drive a stake through the heart of a dead rule, what’s all the fuss about? The answer is that the Biden administration wants to raise the dead, which, the Court said, is precisely what gave it the right to hear the case:

The Government’s argument in this case boils down to its representation that EPA does not intend to enforce the Clean Power Plan prior to promulgating a new Section 111(d) rule. But “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

Lazarus and his allies want the EPA to repeat the “wrongful behavior” by reinstating the Clean Power Plan, arguing that grid-wide mandates constitute the “best system of emission reduction” (BSER) available.

Did the Court Flout the Law?

The relevant paragraphs of Section 111(d) of the Clean Air Act states:

(d) Standards of performance for existing sources; remaining useful life of source

(1)  The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance….

In promulgating a standard of performance under a plan prescribed under this paragraph, the Administrator shall take into consideration, among other factors, remaining useful lives of the sources in the category of sources to which such standard applies.

At the heart of the debate is whether the words “existing source” applies to individual power plants or to the nation’s entire electrical grid. The last paragraph, which refers to the “remaining useful lives of the sources,” suggests that the law covers individual facilities rather than the whole grid. As the majority opinion states:

The issue here is whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% to 27% coal by 2030, can be the BSER within the meaning of Section 111.

Precedent teaches that there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority….

Indeed, the Agency nodded to the novelty of its approach when it explained that it was pursuing a “broader, forward-thinking approach to the design” of Section 111 regulations that would “improve the overall power system,” rather than the emissions performance of individual sources, by forcing a shift throughout the power grid from one type of energy source to another….

On EPA’s view of Section 111(d), Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in the basic regulation of how Americans get their energy. There is little reason to think Congress did so. EPA has admitted that issues of electricity transmission, distribution, and storage are not within its traditional expertise.

While critics of the Court’s WV v EPA decision claim that it took power away from the “experts,” even the EPA admits that it does not have the expertise to implement its plan, risking severe disruptions to the nation’s energy supply and economy.

Did the Court ignore special interests?

Lazarus charges that the Court’s decision was a corrupt bargain:

[T]hese ultra-conservative justices’ modus operandi has “from the beginning” been to “obstruct” EPA, and to conform national policy to the agendas of their Republican patrons and sponsors, and the megadonors who fund those sponsors who, lest we forget, funded the campaigns that secured these justices’ nominations and confirmations.

But then he turns around and complains that the decision doesn’t give corporate special interests what they want:

Defending EPA’s approach to regulating greenhouse gases as parties was a phalanx of mega-power companies, including Con Edison, Exelon, National Grid USA, and Pacific Gas & Electric…

[Environmental advocate Sean] Donahue observed that “Power companies supported EPA because they want regulatory stability, not constant litigation, and they prefer flexible approaches that include things like emissions averaging and trading.”

[T]hese anti-regulatory judicial zealots did not deign to mention the affected industries’ contrary view, let alone explain why—in this hugely consequential case—the most pro-business court in history ignored a major affected industry in order to bend national environmental policy to fit the interests of West Virginia’s Republican Attorney General and his carbon-coddling allies.

While Lazarus claims that:

These approaches [emissions averaging and trading], of course, are the very types of cost-efficient, flexible, minimally disruptive techniques for displacing fossil fuels that Roberts and his colleagues ruled out-of-bounds.

the Court did nothing of the kind. Instead, it pushed the issue to Congress, which has the constitutional duty to deal (or to choose not to deal) with such nationwide issues.


The Supreme Court’s common sense decision states that federal regulatory agencies cannot bypass Congress and unilaterally impose unprecedented and economically and politically significant mandates. Nor can they ignore their own legislatively-approved mandates, stretching them far beyond what was intended. Finally, they cannot extend their reach outside their own expertise.

Contrary to Lazarus’s claims, the Court did not set itself up as a regulatory czar. Instead, it stopped the EPA from ascending to the throne. Nor did the Court “cast aside the peoples’ elected representatives.” Instead, it took the issue away from unelected, unaccountable bureaucrats and placed it back in the hands of the nations’ elected representatives.

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July 9, 2022 11:04 pm

Will this ruling provide any relief for farmers out west who have tangled with the EPA in their “water wars?”

Reply to  noaaprogrammer
July 10, 2022 3:00 am

Not directly, but has EPA been sued to stop? What is the issue?

Ron Long
Reply to  David Wojick
July 10, 2022 3:42 am

The basic issue is that the fish, including small/weird ones, have more rights than the people, who want to utilize a fair amount of the water for agriculture, drinking, etc. I was in Bishop, California when the Desert Pupfish were deemed to own the water, and I remember bumper stickers that said “It Takes a Thousand Pupfish to Make a Sandwich”.

Reply to  Ron Long
July 10, 2022 5:10 am

Sounds more like FWA than EPA. An endangered species? There is some litigation there but I do not follow it.

Reply to  David Wojick
July 10, 2022 5:31 am

That is FWS. Fish and Wildlife Service. They enforce ESA. Looks like CA too.

H. D. Hoese
Reply to  David Wojick
July 10, 2022 7:08 am

The desert pupfish is a close relative of what could be its ancestor or at least close relative–the exceptionally common coastal sheepshead minnow. It is euryhaline (withstands freshwater) and I think, need to check, can hybridize with the desert pupfish. There are a fair number of species of fishes that managed to adapt to the drying west in springs and caves, and our water use did not help, but many species to everyone’s surprise still survive, frogs go underground also. I doubt that their extinction would end the ecosystem, but it is reasonable to save and study them.There are an increasing number of fishes being discovered to use atmospheric oxygen and drying conditions. Life is tough but risky in some habitats. Example.

   Minckley, W. L., R. R. Miller, and S. M. Norris. 2002. Three new pupfish species, Cyprinodon (Teleostei, Cyprinodontidae), from Chihuahua, Mexico and Arizona, USA. Copeia (3:):687-705.

The society publishing the journal Copeia changed its name because Cope was a jerk. Those changing names are also.

Eric Vieira
Reply to  Ron Long
July 10, 2022 8:51 am

There is a joke in Switzerland talking about drought times..
“It was so dry .. that 3-year old fish hadn’t learned how to swim yet …
and it was so dry .. that phone poles ran after dogs to get pissed on ..”

Reply to  noaaprogrammer
July 10, 2022 7:20 pm

Not sure what you mean by “water wars”. EPA does not regulate water flows or water uses and allocations – only water quality. Water law is extremely complex and is sometimes directly regulated by the courts when states have disputes over water allocations.

Where Federal agencies such as Fish & Wildlife, in regards to water releases to protect certain species are concerned, regulate is via the Endangered Species Act. EPA and the Army Corps of Engineers also regulate wetlands via enforcement of the Clean Water Act. There have been challenges to some of the wetlands rules based upon agencies exceeding their authority as Congress laid it out in the CWA. The basis of Federal authority to regulate water is the definition of “waters of the United States”, which derives from navigability which relates to interstate commerce. But the Feds have asserted authority to regulate small isolated wetlands that are in no way navigable.

So perhaps SCOTUS could take a whack at those rules if they accept a relevant test case.

Mark BLR
Reply to  Duane
July 11, 2022 3:11 am

Not sure what you mean by “water wars”.

I may be wrong, but I believe this refers to the WOTUS (Waters Of The United States) “guidelines” introduced by the EPA in the mid-2010s that ended up “regulating every puddle” and was fiercely resisted by American farmers.

See the following article for an introduction to the subject :

Louis Hunt
July 9, 2022 11:24 pm

Great summary:
“Contrary to Lazarus’s claims, the Court did not set itself up as a regulatory czar. Instead, it stopped the EPA from ascending to the throne. Nor did the Court “cast aside the peoples’ elected representatives.” Instead, it took the issue away from unelected, unaccountable bureaucrats and placed it back in the hands of the nations’ elected representatives.”

I was thinking that very thing as I read the article. The Court is not setting any regulations. It simply threw the issue back to the people’s elected representatives where it belongs. They are the ones who should decide how far the EPA can go. If the majority supports onerous regulations, it can pass them and authorize the EPA to enforce them. But if the majority does not support such insane regulations, who is the EPA to override the will of the people or their elected representatives?

Tom in Florida
Reply to  Louis Hunt
July 10, 2022 7:43 am

Unfortunately in recent decades the Congress has stayed away from very controversial subjects refusing to put their vote on the record in fear of not being re-elected. So they let the courts decide; and now when the SC says do your job and put up legislation for a vote, the liberals refuse. Probably out of fear they will lose the vote.

Louis Hunt
Reply to  Tom in Florida
July 10, 2022 8:42 pm

Congress should be afraid to act against the will of the people. They’re suppose to represent their constituents, not some woke minority. The only thing that’s unfortunate about it is the willingness of the courts to overstep their authority and legislate from the bench. That is not their job. A lot of the mess we are in today is the result of the courts abusing their authority.

Tom Halla
July 9, 2022 11:52 pm

More on point, Obama had just failed to get a similar program through Congress, so the wishes of the legislative branch was not do do the CPP, or anything similar.

July 10, 2022 1:56 am

Kagan made the same argument in her dissent. Was she just quoting an EPA or Friend of the Court sympathetic to EPA?

Ed Zuiderwijk
July 10, 2022 2:19 am

Let’s agree that this Lazarus does no rise from the dead but instead is chased out of town tarred and covered in feathers.

Rich Davis
Reply to  Ed Zuiderwijk
July 10, 2022 8:53 am

We can’t chase him out of town if he doesn’t rise from the dead, Ed. Leave him in the ground!

Ben Vorlich
Reply to  David Wojick
July 10, 2022 3:03 am

It’s rather like Cnut and the tide. He was proving that humans, no matter how powerful, cannot control nature. In this case nature has proved that people are still foolish enough to think they can control nature does by passing a law.

Old Man Winter
Reply to  David Wojick
July 10, 2022 4:48 am

Quote from the reference:

“On one hand EPA’s legal mandate to regulate CO2 under the Clean Air Act is clear.
First the (prior) Supreme Court ruled that CO2 was a “pollutant” under the Act.
This is because buried in the 1990 Amendments was a clause adding causing climate
change to the definition of “pollutant”. The Court accepted the government’s
claim that the CO2 increase could cause climate change. The new Court could change
this but is unlikely to do so.” (emphasis mine)

Thanks for your well written article. It’s a must read worth saving.

Normally, courts stay away from the scientific/technical aspects of a case
& stick to the legal aspects because that isn’t their area of expertise. In
this case, for whatever reason, they didn’t require the claimants to
overwhelmingly prove that a CO2 increase DOES in fact detrimentally change
the climate & were willing to accept “could” as a standard. That doesn’t even
come close to anything a scientist would accept as overwhelming proof of
anything & the standard should be raised to actual proof, not conjecture.

Since science is our knowledge of the physical world that hasn’t been disproven
yet, shouldn’t the courts recognize that fact & require each subsequent case
based on this precedent to prove that the scientific/technical claim is still
valid? If the science changed or wasn’t thoroughly proven, the ruling could be
quite erroneous.

Is there any way through legislation, Constitutional amendments, and/or Supreme
Court rulings that both the “could” standard & the re-validation of the
scientific/technical claim be required in each ruling thereafter? A person could
be destroyed by an invalid claim & that seems to be on the same level as accepting
hearsay evidence.

Old Man Winter
Reply to  Old Man Winter
July 10, 2022 5:26 am

“Court rulings that both the “could” standard” S/B
“Court rulings that both a requirement of overwhelming proof & not the “could” standard”

Last edited 2 months ago by Old Man Winter
Ron Long
July 10, 2022 3:38 am

Good report, and it includes description of the recent political environment in the USA: radical swinging back-and-forth to political extremes. Now, the Republicans need to have a Congress, and later a President, who will restore economic health so the Green Loonies can do a little damage but not enough to de-rail the economy. Moderates need not apply. However, the current Supremes are the hope for some years of sanity.

Taylor Pohlman
July 10, 2022 6:10 am

I think a new Congress should use the OSHA definition of ‘pollutant’ with respect to CO2. That is, what level of continuous exposure to CO2 is potentially harmful to human health. Since that number, per OSHA regs, is well in excess of 1000 ppm, the EPA would have to prove that any lower levels are actually harmful in any way. They would also have to prove that actions by power producers, etc. would actually raise CO2 to those levels.

Case closed.

Reply to  Taylor Pohlman
July 10, 2022 7:43 am

Data collected on nine nuclear-powered ballistic missile submarines indicate an average CO 2 concentration of 3,500 ppm with a range of 0-10,600 ppm, and data collected on 10 nuclear-powered attack submarines indicate an average CO 2 concentration of 4,100 ppm with a range of 300-11,300 ppm (Hagar 2003).

So is the EPA shutting down a/o fining the Party Military’s Navy for exposing sailors to “potentially harmful to human health” levels of CO2?

David Hoopman
July 10, 2022 8:41 am

OF COURSE the regulated utilities support the EPA’s position and go along with the costs it would impose on them–and ultimately their consumers–because:

1) The utilities fear the agencies that regulate them, and 2) they receive a guaranteed rate of return, meaning they realize earnings of (roughly) 10-14 percent on any expense the regulators authorize. In other words, being burdened with an expensive regulation improves the utilities’ bottom line. Consumers? Meh…

Reply to  David Hoopman
July 10, 2022 9:22 am

Yes, the rush to renewables is now driven by the utilities who are making a fortune on the billions spent. It is called rebuilding the asset base. Xcel pioneered it.

Eric Vieira
July 10, 2022 8:47 am

The worst thig is: they could have expertise, but it’s not those people who get the job..

July 10, 2022 9:28 am

This should apply to other regulatory agencies that have been doing the job congress wants done without the congress being involved.

July 10, 2022 9:50 am

From these pseudo intellectual buffoons:

Text and History Support the Vaccination Requirement for Federal Employees

and elsewhere

Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion

The text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, establish a family, and reproductive liberty. The right to abortion flows logically from these fundamental rights that the Fourteenth Amendment was written to protect. The Supreme Court should recognize this when it decides this Term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning abortions after fifteen weeks of pregnancy.

July 10, 2022 9:58 am

One thing is certain. Leftists always whine when they lose. They all claim they won’t accept the rule of law as well. You can count on that.

Reply to  Doonman
July 10, 2022 10:29 pm

A bunch have said that they ar going to move to Canada after the Dobbs decision. Just like those who said they’d move to Canada if Trump won in 2016, and they didn’t move. All talk, no action.

jeffery P
July 10, 2022 12:05 pm

Lazarus is one more progressive demagogue who doesn’t understand what West Virgina v. EPA was even about. Or does he deliberately misrepresent the ruling in order to keep people worked up?

Reply to  jeffery P
July 10, 2022 4:35 pm

As with all progressives, he misrepresents his opponents always and in any facet he can conceive of, usually by accusing his opponents of doing what his side is in fact already doing.

July 10, 2022 7:06 pm

As a lawyer this guy would make a good refuse truck driver.

He should certainly know better that SCOTUS is solely empowered to decide which cases to accept or not except, unless Congress has enacted in law a carve out denying court review authority, which was not done.

Secondly, the section of the law that the court allegedly “violated” is predicated on regulating sources of pollutants. But the 1990 CAA law does not define CO2 as a “pollutant”. End of story.

Finally, it doesn’t matter what any party wants or doesn’t want, no matter who they are. SCOTUS is supposed to rule only on the basis of the facts and the law, not “wants”.

Last edited 2 months ago by Duane
Richard W Fulmer
July 11, 2022 6:51 am

Note that the Court did not say, as some are claiming, that the EPA can’t regulate CO2 emissions. What it did say was that there are limits to how far the agency can go in regulating them. By analogy, it’s one thing require the use of catalytic converters on gas-fueled cars to reduce carbon monoxide emissions. But it would be quite another to dictate that Detroit stop making gas-fueled cars altogether and make only EVs instead. Such a requirement would have so big an impact on consumers, the transportation system, and the economy that, per the Court’s WV v EPA ruling, the call should be left to elected officials rather than to a regulatory agency.

Reply to  Richard W Fulmer
July 13, 2022 3:02 pm

Yes, as one would expect from Roberts, it is a narrow ruling on this specific regulation and the effort to use a novel definition of source. EPA can still regulate CO2 in many other ways using this & other sections of the Clean Air Act using the normal definition of “source”.

Danley Wolfe
July 12, 2022 6:12 am

Let the battles begin. Alito / WVa v. EPA turns back the Obama era CPP which handed over power over the people to a politically appointed administration / department rather than properly with the people (via Congress). Long live the constitution. Long live the people.

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