West Virginia v. EPA: Considerations for the Future of EPA Greenhouse Gas Regulation

When compared to historical levels, the air quality in the United States has improved. However, exposure to air pollution still rises to the top of environmental health risks experienced by Americans. It is estimated that one hundred thousand to two hundred thousand deaths annually are associated with this exposure, which exceeds the deaths from murders and car crashes combined. Further, evidence establishes that “rising concentrations of carbon dioxide, methane, and other greenhouse gases pose serious threats to public health.” Looking to the sources of greenhouse gas emissions, fossil fuel-fired power plants are the largest source of greenhouse gas emissions in the United States.

Part I of this Article will introduce the history of the EPA’s regulation of greenhouse gases, with a particular focus on the proposal of the Clean Power Plant pursuant to § 111(d) of the Clean Air Act. Part II will explore the Supreme Court’s interpretation of the EPA’s Clean Power Plan via its application of the major questions doctrine in West Virginia v. EPA, with the Court’s decision in Loper Bright as a consideration. West Virginia v. EPA is central to this article because it marked a pivotal moment in the jurisprudence of the Court which weakened EPA authority to regulate greenhouse gases from power plants. Part III will offer an analysis of how the Court’s use of the major questions doctrine in West Virginia could impact the EPA’s future regulation of greenhouse gas emissions, while considering the public health-related implications. Part IV will survey three key points of revision Congress should consider should it act to fortify the EPA’s authority to regulate greenhouse gas emissions through broad system-based rules.