West Virginia v. EPA: An Advisory Opinion?

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.

The advisory nature of the decision is also more than a technicality. It forces the Roberts Court’s efforts (which have been substantial if not entirely consistent) to insist on strict observance of Article III limits on federal courts. More importantly, the advisory nature of the opinion decisively shaped the way the Court characterizes the major questions doctrine. As we shall see in a later post, the court framed the doctrine as an abstract exercise in political science detached from the ordinary role of courts as interpreters of controlling legal texts.

To understand the justiciability aspect of the case, it is necessary briefly to recap the sequence of decisions. In 2015, the Obama Environmental Protection Agency announced something called the Clean Power Plan, its most ambitious initiative to reduce greenhouse gas emissions. The CPP set new limits on carbon dioxide emissions from existing fossil-fueled power plants. The plan was highly innovative because the limits were based on what individual plants would discharge if they were linked in a grid with other power sources emitting lower amounts of C02, such as generating facilities powered by natural gas, solar, or wind.

In effect, the Obama Administration’s objective in the CPP was to force existing plants to enter into cap-and-trade systems that would favor renewables and discourage the use of fossil fuels. This became known in the litigation as a “generation shifting” control strategy, as opposed to more traditional strategies based on technological measures at individual plants, such as installed scrubbers.

The CPP was challenged in court, and in an unusual move, it was stayed by the Supreme Court in 2016 before any of the challenges produced a final judgment. In 2019, the Trump Administration formally repealed the CPP, based on its legal conclusion that generation shifting was not authorized by the relevant provision of the Clean Air Act. The Trump EPA simultaneously issued a new plan for regulating emissions of CO2 from existing fossil-fueled power plants, called the Affordable Clean Energy rule or ACE, which set new, and comparatively modest, limits on emissions by existing plants, based on the use of more efficient combustion devices.

A coalition of blue states and (interestingly) electric utility companies filed a massive review proceeding in the DC Circuit challenging ACE. One day before the inauguration of President Biden, a divided panel of the DC Circuit struck down the Trump plan. The bulk of the court’s nearly 150-page majority opinion consisted of a labored analysis explaining how the repealed CPP could be squared with the language of the Act. The bottom line was that since generation-shifting as imposed by the CPP was legally legal, the Trump EPA erred in concluding that it had been impermissible. The ACE plan was accordingly reversed and remanded to the EPA.

After the decision was rendered, the DC Circuit clarified, in response to a motion by the Biden Administration, that its mandate did not mean that the CPP was reinstated. Indeed, the court’s conclusion would seem to be required by principles of administrative law: In Burlington Northern, Inc. v. United States459 US 131 (1982), the Supreme Court held that when an agency issues sequential decisions, reversal by a court of a later decision does not automatically reinstate an earlier one.

In this posture, West Virginia and its coal-producing allies petitioned the Supreme Court to review the DC Circuit’s decision. The solicitor general opposed the request, arguing that the petitioners lacked standing since they were no long subject to any form of CO2 emissions controls, the CPP having been stayed and repealed and the ACE rule having been vacated and remanded. The Court nevertheless granted certiorari.

In my assessment, West Virginia clearly had standing to ask the Supreme Court to review and reverse the DC Circuit’s decision invalidating the Trump plan. The ACE rule imposed rather modest limits on coal-burning power plants, and West Virginia could plausibly argue that these limits would be relatively easy for it to administer and enforce. Given that the states have frontline responsibility to implement emissions limits on existing sources, this was a sufficient interest to give West Virginia a tangible stake in the perpetuation of the ACE plan.

For the same reason, I do not think that the question of the legality of the ACE plan was moot. If the Supreme Court reversed the DC Circuit, the ACE plan would remain in effect, and this would have different legal consequences relative to a world in which there were no EPA standard in place for existing fossil-fueled power plants.

The briefing and argument nevertheless made clear that what West Virginia and its allies really wanted was a decision from the Supreme Court that the Obama Administration’s CPP—or something like it—was not legally permissible.

This was a request for an advisory opinion. The CPP had never been put in effect and was long dead. The particular form of generation shifting the CPP sought to mandate was of no continuing legal consequence.

Of course, any sophisticated observer of the Washington scene could predict that the Biden Administration was likely to put something similar to CPP in place. Or perhaps not. There are a variety of moves the Biden Administration could take to hasten the demise of coal-burning power plants. At this point it is completely unknown what form future regulation will take.

In any event, the critical legal point is that no generation-shifting plan for existing power plants was in effect when the Court rendered its decision. There being no actual plan to review, the Court’s ruling that such a plan would be beyond the power of the EPA was an advisory opinion.

One could perhaps argue that the DC Circuit’s conclusion that the CPP was legally legal was critical to its judgment that the Trump Administration erred in concluding it was impermissible, and hence for its decision to reverse and remand ACE to the EPA. This, in turn, might justify a decision by the Supreme Court dissecting the DC Circuit’s reasons for concluding that the Trump EPA had adopted an overly narrow interpretation of the EPA’s authority, and either accepting or rejecting those reasons.

But the Court did not engage with the DC Circuit’s analysis of the statute. Instead, it held that any form of generation shifting—at least with respect to greenhouse gas emissions from existing power plants—was beyond the delegated power of the EPA. This was effectively an advisory opinion about the long-defunct CPP—or any future plan that entails similar characteristics.

The Court was telling the Biden Administration what it could not do in the future; it was not adjudicating the legality of anything of current significance. This can perhaps be explained by the fact that the DC Circuit rendered such an elaborate advisory opinion that the CPP was legal. But federal courts review “judgments, not opinions,” Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837, 842 (1984), and the only judgment before the Court was the one overturning the Trump Administration ACE plan. So much for federal courts being limited to deciding actual “cases” or “controversies.”

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