The Court Did Not Ban Clean Air. It Told EPA to Ask Congress First.

A rule that never went into effect was struck down by a Court that never banned anything, and somehow the headlines concluded that the sky was about to turn brown. That is quite a trick. You have to admire the commitment.

Here is the claim you will hear at a dinner party, in a newsroom or from a politician who has not read the opinion: in West Virginia v. EPA, the Supreme Court gutted the government's power to protect the environment. It is a good line. It has the great merit of being easy to say and the great defect of being wrong.

The case was about who decides, not whether. It asked whether a federal agency could, on the strength of a few sentences in a 1970 law, remake the way the entire nation generates electricity. The Court said no, and said the people who should decide that sort of question are the ones we elect and can throw out of office. Let me show you why that answer is right, and why it should please anyone who has ever read the first sentence of the Constitution.

The critics' best case

I want to start with the best version of the opposing argument, stated in terms its supporters would accept. It runs like this.

The Clean Air Act is a broad statute that Congress wrote on purpose to let experts adapt as science and technology change. Section 111 tells EPA to set standards for pollution from existing power plants based on the "best system of emission reduction." That is flexible language, and flexibility was the point. Climate change is among the biggest problems any government faces. Congress has been gridlocked, and it has not passed a comprehensive climate law. When the legislature does not act, the argument goes, agencies must use the tools they already have. Then in 2022 six justices invented a doctrine, the "major questions doctrine," that appears nowhere in the text of the Clean Air Act or the Constitution, and used it to block an agency's plan. The result is that the people with the most expertise are barred from solving the problem, while a court of lawyers sets the energy policy of the country. Justice Kagan, in dissent, said she could think of few things more frightening than the Court appointing itself the decision-maker on climate policy.

That is a serious argument, and it comes from serious people. Now let me answer it.

What actually happened: a short history

Start with the statute. The Clean Air Act of 1970 was signed by a Republican, President Richard Nixon, on the last day of that year. Nixon had also set up the Environmental Protection Agency by reorganization plan, and the agency opened its doors in December 1970. The 1990 amendments were signed by another Republican, President George H.W. Bush. Those amendments included a market-based program to reduce the sulfur dioxide that causes acid rain, a trading system that conservatives still point to as a model of how to cut pollution without commanding every plant what to do.

I raise this because conservatives are often cast as people who do not care about clean air. We have a record to be proud of. We wrote a good deal of it.

Section 111(d) of the law lets EPA regulate certain pollutants from existing sources. It had been used rarely. In 2015, the Obama administration's EPA announced the Clean Power Plan, a rule aimed at carbon dioxide from existing power plants. The plan set emission goals for each state. To reach them, it defined the "best system of emission reduction" as three "building blocks": make coal plants more efficient, shift generation from coal plants to natural gas plants, and shift generation from fossil fuels to wind and solar. The second and third blocks are what economists call generation shifting. They are not about making a given plant cleaner. They are about making some plants produce less so that others produce more.

That is a vast change. It would restructure the electric grid, and it would do so by an agency reading a provision that had barely been used. States and industry sued. In February 2016 the Supreme Court stayed the rule while the litigation went on, which means it never took effect. Then the next administration repealed it in 2019 and replaced it with a narrower rule. A court of appeals threw out that replacement in January 2021, which brought the question to the Supreme Court. On June 30, 2022, the Court decided West Virginia v. EPA, in a 6-to-3 ruling written by Chief Justice Roberts.

What the Court held

The Court held that Congress had not clearly authorized EPA to use generation shifting to force a national change in the way electricity is made. It applied what it called the major questions doctrine: when an agency claims the power to decide a question of vast economic and political significance, it must point to clear congressional authorization. Vague, old or rarely used statutory language is not enough.

The idea was not invented in 2022. The Court had used similar reasoning in FDA v. Brown & Williamson (2000), where it declined to read the Food and Drug Administration's general authority to cover tobacco. It was there when Justice Scalia wrote in Whitman v. American Trucking Associations (2001) that Congress does not "hide elephants in mouseholes." It appeared in Utility Air Regulatory Group v. EPA (2014), when the Court said it expects Congress to speak clearly when it assigns an agency decisions of great economic and political significance. And in 2021 and 2022, the Court applied it to the CDC's eviction moratorium and to OSHA's vaccine-or-test mandate for large employers, two agency actions that reached for authority nobody had clearly handed over.

So the doctrine did not come out of the blue, and it is not a partisan toy. It applies to whichever administration has the ambition.

The rebuttal in six points

Here is the case, in order.

1. The ruling was narrow. The Court did not say EPA may not regulate carbon dioxide from power plants. It said Section 111(d) does not clearly authorize generation shifting. The majority recognized that EPA can still set emission standards based on measures a plant can apply to itself, such as efficiency improvements, sometimes described as "inside the fence line." What it cannot do, without a clearer instruction from Congress, is order the closure or throttling of whole classes of plants to make room for others.

1. EPA's power over greenhouse gases survives. In Massachusetts v. EPA (2007), the Court held that greenhouse gases fall within the Clean Air Act's definition of an "air pollutant," and that EPA has authority to regulate them from new vehicles if it makes the proper findings. West Virginia did not disturb that holding. If the claim is that the Court stripped EPA's power, the answer is to point at the vehicles, at the other sections of the Act, and at the ordinary pollutants, from ozone-forming gases to fine particles, that the agency regulates every day under standards the Court left untouched.

1. The plan never took effect. Nothing was taken away because nothing was in force. The Court stayed the Clean Power Plan in 2016, the next administration repealed it, and the question reached the Court only because a later court decision revived the dispute. A rule that has never governed anyone cannot be the cause of dirty air.

1. Policy this large belongs to elected lawmakers. The Constitution's first operative sentence, in Article I, Section 1, reads: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Congress may delegate details, and the Court has long allowed it so long as Congress supplies an intelligible principle, as it said in J.W. Hampton in 1928. But restructuring the national power system is not a detail. It decides which jobs, which towns and which utility bills rise or fall. That is exactly the kind of decision voters are entitled to hold someone accountable for. When an agency makes it, the person you can vote out is not the person who decided. For a deeper treatment of this theme, see Congress Should Write the Laws, and Other Radical Ideas From Article I.

1. Congress can act, and has. The claim that Congress is helpless is a choice, not a fact. The same Congress that passed the Clean Air Act amendments of 1990 also passed major energy laws in 2005 and 2007. Legislating is hard, and that is by design. A rule that is hard to pass is a rule that has to win a majority of people's representatives, and a rule that cannot win that majority is a rule the country has not agreed to.

1. The carbon numbers moved for other reasons. Many analysts, across the spectrum, have pointed out that carbon dioxide emissions from the power sector fell in the years after the plan was proposed mostly because natural gas became cheap and displaced coal. That cheap gas came from the shale revolution described in The Texas Wildcatter Who Spent Twenty Years Cracking the Shale Code, which was driven by private investment, not by an agency rule. The plan is not what moved the numbers.

A hypothetical to see the difference

Words like "inside the fence line" and "generation shifting" can make eyes glaze over, so here is a hypothetical with invented numbers.

Picture a state with one coal plant and one gas plant. The coal plant emits 1,000 tons of carbon dioxide a year. The regulator wants a cut.

Option one, the plant-level rule. The agency requires the coal plant to improve its efficiency enough to emit 5 percent less. The arithmetic is 1,000 × 0.95 = 950 tons. The plant keeps operating, its workers keep their jobs, and the owner decides how to hit the target. That is the kind of rule the Court left available.

Option two, generation shifting. The agency requires the state to cut coal generation by 30 percent and to make up the difference with the gas plant. Coal emissions fall to 1,000 × 0.70 = 700 tons. Suppose the extra gas generation adds 300 units of electricity at 0.4 tons per unit, which is 300 × 0.4 = 120 tons. The new total is 700 + 120 = 820 tons, a bigger cut than option one.

Notice what the second option really does. It does not make any plant cleaner. It decides, by regulation, that a third of one plant's business should go to another plant, and then to wind and solar owners. Someone loses a paycheck and someone else gains a contract. A decision to pick winners and losers on that scale is a political decision in the plainest sense. The question is not whether option two might cut more emissions, because it can. The question is whether an agency may make that choice on its own authority. The Court's answer was that, absent a clear instruction, it may not.

Where the critics have a point

I promised to be fair, so here are the places where the other side lands a punch.

First, gridlock in Congress is real. Some members would rather let an agency take the political heat than cast a hard vote, and that is a flaw in the way Congress works. But the cure is for voters to demand that their representatives do their jobs. The cure is not to let an agency do it for them.

Second, the major questions doctrine has fuzzy edges. How "major" must a question be? Who decides? Reasonable people, including conservative legal scholars, disagree, and future cases will have to draw the line. That is true of most doctrines in their early years.

Third, the principle cuts both ways, and conservatives ought to say so. A rule that stops a liberal administration from stretching an old statute will stop a conservative one from doing the same. If you cheer when the Court says "ask Congress first," you have agreed to ask Congress first when your side holds the White House. I think that is a bargain worth making. The related change in the law of deference to agencies is covered in Chevron Is Gone, and Here Is What Loper Bright Changed for Everyone, and the question of who can supervise the agencies at all is told in Who Can Fire the Regulators? A Timeline From Myers to Seila Law.

What this means for the cost side

There is another reason to want elected lawmakers in charge. A large energy rule has costs and benefits, and someone has to weigh them in public. The family that pays the electric bill is entitled to know what a policy will cost and who benefits. Regulation protects us, so why count the cost? Because someone pays it makes that argument in detail. You can also test any federal action yourself with A Five-Question Constitutional Test You Can Run on Any Federal Law, and the paperwork side of the energy story is in NEPA Explained, the 1970 Law Where Paperwork Outlasts the Project.

The bottom line

• West Virginia v. EPA (2022) held that Section 111(d) of the Clean Air Act does not clearly let EPA force a nationwide shift in how electricity is generated. It did not ban EPA from regulating air pollution.
• The Clean Power Plan was stayed in 2016 and never took effect. The Court's decision was about who decides, and the answer is Congress.
• Conservatives have a proud record of clean air laws: the 1970 Act under Nixon and the 1990 amendments, with the acid rain trading program, under George H.W. Bush. The argument is about the proper process, not about whether we care.
• When someone says the Court "gutted" environmental protection, ask which rule was in force, what the Court actually held, and why a policy this large should be decided by someone you cannot vote out. Then ask your representatives to write the law in public.