Environmental Protection

West Virginia v. EPA

In West Virginia v. EPA, states and others are challenging the EPA’s Clean Power Plan rule (CPP), which established emission guidelines for states to follow in developing plans to limit CO2 emissions from existing power plants. The goal of these guidelines is to achieve significant reductions in CO2 emissions by 2030, while offering states and utilities substantial flexibility and latitude in achieving these reductions.

Case Summary

Opponents of the CPP, including states, industry, and the Chamber of Commerce, have challenged the rule in the United States Court of Appeals for the D.C. Circuit. Among other things, they argue that, under their reading of the Clean Air Act (CAA), the EPA’s decision to regulate hazardous pollutants emitted from power plants deprives it of the authority to regulate CO2 emissions from those same power plants. Republican members of Congress filed a friend-of-the-court brief in support of the rule’s challengers, arguing that the rule usurps Congress’s ability to make policy for the nation.

CAC filed a friend-of-the-court brief in the consolidated CPP cases on behalf of current members of Congress and bipartisan former members of Congress who are familiar with the CAA and were either sponsors of CAA legislation, participants in drafting the 1990 CAA amendments, or served on key committees with jurisdiction over the EPA and CAA. Our brief on behalf of these current and former members of Congress argues that the rule’s challengers fundamentally misunderstand the CAA and the authority it confers on the EPA. As our brief demonstrates, the CAA gave EPA, as the delegated expert agency, discretion to elaborate on criteria set out in the statute, to resolve ambiguities in them, and to apply them to specific new problems as they arose. Congress also intentionally drafted certain provisions with broad language so EPA could play a key role in shaping the approach to developing and setting standards for specific sources and pollutants, both known and unknown.

By promulgating rules that are consistent with the CAA’s text, structure, and history (as the CPP is), the EPA conforms to clear congressional instructions and facilitates Congress’s ability to enact a robust clean air and public health policy for the nation. In other words, as we argue in our brief, the Clean Power Plan rule does not “usurp the role of Congress to establish climate and energy policy for the nation,” as conservative members of Congress claim; rather, it facilitates Congress’s ability to set policy for the nation by implementing the policy objectives Congress enacted in the CAA.

In March 2017, President Trump signed an Executive Order that, among other things, instructed the EPA to reexamine the CPP and “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” it.  That same day, the EPA filed a motion with the D.C. Circuit asking that the cases be held in abeyance in light of the agency’s plan to reexamine the rule at issue.  The court granted the EPA’s motion, and the case remains in abeyance.

Case Timeline

  • April 1, 2016

    CAC files amicus brief on behalf of members of Congress in the U.S. Court of Appeals for the D.C. Circuit

    D.C. Circuit Amicus Brief
  • September 27, 2016

    D.C. Cir. hears oral argument en banc

    Oral arguments can be heard here and here.

  • March 28, 2017

    Trump orders reexamination of CPP

  • March 28, 2017

    EPA asks D.C. Cir. to hold case in abeyance

  • April 28, 2017

    D.C. Cir. grant’s EPA’s motion to hold case in abeyance

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