West Virginia Could Undermine Effective, Popular Climate Policy 

The Clean Air Act (CAA) is a landmark success in environmental lawmaking. In 2020 alone, CAA regulations prevented 230,000 early deaths, averted 120,000 emergency room visits, and saved 5.4 million potential lost school days for students who would've suffered debilitating respiratory illness. The CAA is also an astronomically good return on investment—each year, its $65 billion in costs are projected to generate $2 trillion in benefits. That means that for every dollar spent, this law is delivering $30 in benefits - an ROI that’s hard to beat. 

And the American public understands the value of clean air. In the wake of Trump-era regulatory rollbacks, a 2018 poll from the American Lung Association found that three-quarters of voters support the EPA “enforcing stricter limits on air pollution, including updated standards for ozone." A 2017 Ipsos/Reuters poll found that 67 percent of Americans think the EPA should maintain its authority or even be strengthened. The EPA’s Clean Air Act enforcement—the very issue under dispute in West Virginia—is overwhelmingly popular.

The CAA is also a pivotal climate policy, and a necessary tool for the Biden administration to cut carbon pollution. Since the Supreme Court affirmed the EPA’s authority to regulate greenhouse gasses in the 2007 Massachusetts v. EPA decision, the CAA has offered a pathway for the federal government to directly curtail carbon pollution. Gutting the CAA would severely limit EPA’s ability to directly slash carbon pollution. If conservative Justices do not act in accordance with the Court’s own precedent, they will hamstring the Biden administration’s climate agenda—and bear responsibility for the excess deaths currently prevented by life-saving pollution regulations.

What’s at Stake 

West Virginia v. EPA is the result of numerous challenges, advanced by Republican-led states with the backing of coal companies and right wing judicial activists, to the Obama-era Clean Power Plan (CPP). The CPP relied on established Clean Air Act authorities to cut power plant carbon pollution, but the rule never even went into effect. The Trump administration rolled back the plan in 2017, and the Biden administration has declined to revive it.

That’s why many Court-watchers were outraged by the Court’s decision to hear West Virginia. Why would the Court take up a case on a regulation that never went into effect and make a ruling in the abstract? The answer is painfully clear: in West Virginia v. EPA, the Court’s conservatives are adhering to industry’s calls to gut the Clean Air Act and, with it, EPA’s regulatory authority.

But the court’s decision in West Virginia could have implications far beyond the purview of EPA and the Clean Air Act. The case threatens to overturn Chevron deference, a fundamental principle of regulatory governance, and reintroduce the nondelegation doctrine, a principle that could “render most of contemporary government unconstitutional”.

Chevron deference is a decades-old precedent dictating that courts should generally defer to agency interpretation where laws are ambiguous. That doctrine is rooted in a simple fact of governance laid out by the Court: that the power of an agency to administer a congressionally created program “necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Overturning the Chevron Doctrine would give courts far more say over how the executive branch carries out laws—a move that would strip the executive of regulatory discretion, and allow judges to “justify blocking nearly any regulation they do not like.”

The nondelegation doctrine, described in the Atlantic as “one of the most dangerous ideas in American law”, would endorse that judicial overreach. The doctrine suggests that Congress cannot delegate any powers that could be construed as legislative to the executive branch. Adopting nondelegation would render agency discretion unconstitutional and “fundamentally alter the structure of the US government, stripping away the government’s power on issues as diverse as workplace safety, environmental protection, access to birth control, overtime pay, and vaccination. In this scenario, hundreds of laws could be weakened or even deactivated."

West Virginia threatens not only one of the best tools the federal government has to fight the climate crisis, but the very nature of American governance as we know it. That would be great news for the corporations that are desperate to return to the era when they could poison our air and water completely unchecked, but would be devastating for the American people.

The Court Must Rule to Preserve the Clean Air Act

Against the backdrop of the Court’s recent turn to nonstandard procedure and the “shadow docket”, an extreme ruling in West Virginia could portend a further descent into judicial partisanship and legislating from the bench. The Supreme Court’s conservative supermajority took up West Virginia on questionable grounds—the rule at issue is no longer in effect, and will not be revived. Conservatives’ approach to the case has been denounced as ahistorical and dangerous. This case is not only a threat to the future of American environmental regulation; it is also a threat to the Court’s long-term legitimacy.

Confidence in the Supreme Court is at historic lows; Gallup polling shows that the Court’s approval rating has plummeted to 40%. Recent decisions, like the move to preserve Texas’ Roe-defying abortion ban, have only affirmed the popular view of the Court as a partisan institution. If Court conservatives do not preserve the Clean Air Act, and instead take West Virginia as an opportunity to dismantle the American administrative state, they will further mar the Court’s reputation as a right-wing institution upholding undemocratic minority rule.

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