West Virginia v. EPA - Irresponsible Developments

Published November 1, 2024 By Gabriela Hamdieh

The United States continuously faces hard questions as a consequence to rapid developments in our emerging technologies and climate. These hard questions are regarding assessing priorities in consumer protection vs. economic growth, and the Supreme Court decides who has the authority to make such calls on behalf of the country.

The Supreme Court’s power is incredibly consequential, especially when looking at one of the most defining rules for distributing regulatory authority on large scale developments, West Virginia v. Environmental Protection Agency (EPA), decided on June 30, 2022. In 2022, West Virginia was the second largest coal producer in the country, and coal-fired electric power plants accounted for almost 90% of West Virginia's net electricity generation (1). This relates heavily to the aforementioned landmark Supreme Court Case, decided by a 6-to-3 vote, which limited the power of the EPA to regulate existing power plants’ carbon dioxide emissions (2). 

This decision was a direct contrast to the 1970 Clean Air Act, which allowed the EPA to set pollution limits for power plants to reduce emissions (3). Just ten years after the act was passed, industrial particulate emissions decreased by 50%, and the life expectancy of residents in cities with previously concentrated pollution increased by 1-3 years (4). Curbing the EPA’s power further was influenced by reactions to the Clean Power Plan, set by the Obama Administration in 2015, which set national standards for power plant emissions and enabled the EPA to target emissions of coal and gas burning power plants, as they were the largest industrial contributors to air pollution. The Supreme Court delayed the plan’s implementation in 2016 due to lawsuits being filed by various states arguing that it gave the EPA excess authority. Additionally, the Trump Administration proposed to repeal it in 2017, and the Affordable Clean Energy Rule was issued instead in 2019, which provided less regulations and more state power. Thus, the Supreme Court, possibly influenced by a conservative majority, has a history of siding against strict action being taken against emitting power plants. 

The pattern of soft-handedness towards these emitters limits accountability for the damages caused by profit-based developments within the energy sector. Furthermore, the actions taken in West Virginia v. EPA has broader implications on the power of federal authorities to enforce expert-based judgements, as federal agencies make a concerted effort to recruit staff with highly technical backgrounds and subject-matter expertise (5). Federal agencies are different from other federal bodies of government that have more political influences in their positions, which led to less consideration of consumer safety over maintaining power.  It limits the ability to regulate developments responsibly through a protective body of government.

The impacts of this Supreme Court decision have led to more difficulty to meet Greenhouse Gas emission reduction goals, which were set to decrease thousands of premature deaths, heart attacks, and asthma attacks caused by the environmental stressors of pollution (6). This decision is also significant for being the Court’s first explicit reference to the “major questions doctrine.” (7) The “major questions doctrine” says that there has to be clear statutory authorization guiding all agency actions (8). While it is not a term used by the Supreme Court in a majority opinion, it has served to reduce federal agency authority on multiple occasions. For example, it’s been used to limit the Food and Drug Administration’s regulation of the tobacco industry and the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard imposing COVID-19 vaccination and testing requirements on the national workforce (9), posing severe public health risks.

This leaves the decision-making to much slower and less knowledgeable governmental authorities like Congress, which lack the ability to enact the quick and mindful regulatory decisions necessary for these large, impactful policy decisions (10). Slow congressional action is especially influential when thinking of innovative technologies such as Artificial Intelligence (AI), which is rapidly developing at a much faster pace than the legislation that governs such developments. While the AI and Tech Talent Task Force created by President Biden’s executive order has hired over 200 AI experts into federal agencies (11), they have to defer to Congress, which has no mandate on required experience with these emerging technologies. It leaves consumers that are privy to the wide usage of these technologies vulnerable to the misuse of AI generated images, biased programming, and other deliberate, harmful actions (12). This is also true when looking at the direct impacts on climate change this case poses, as power plants are more able to focus on cheap and harmful, profit-driving energy practices that do not consider the public health impacts on the average consumer.

Recommended action to mitigate the potential damages of West Virginia v. EPA is to better define the “major questions doctrine,” as its loose interpretation has allowed it to be exploited by the Supreme Court for curbing agency regulatory authority in necessary fields (13). Additionally, authority should be designated for those with the technical expertise for it on the federal level, as while the jurisdiction of other governmental bodies can be respected, they lack the necessary knowledge base of subject-matter experts housed in federal agencies (14).