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Environmental scholars review West Virginia v. EPA ruling and regulatory power of the courts during UH Law Center presentation

Oct. 12, 2022 — A panel of environment law experts discussed the recent West Virginia v. Environmental Protection Agency (EPA) decision and the EPA’s new limitations to regulate greenhouse gas during a University of Houston Law Center virtual U.S. Supreme Court Update CLE.

Moderated by UH Law Center Professor Tracy Hester, the panel focused on the major questions doctrine, the Clean Air Act and the Clean Power Plan.

Panelists included:

  • Victor Flatt, Dwight Olds Chair in Law and Co-Director the Environment, Energy, and Natural Resources Center at the University of Houston Law Center
  • Tracy Hester, Co-Director for the Center for Carbon Management in Energy at the University of Houston and Co-Director the Environment, Energy, and Natural Resources Center at the University of Houston Law Center
  • William J. Jackson ('92), Partner at Kelley Drye and Co-Chair of the firm’s environmental law practice

“We need to examine what this really means for greenhouse gas regulation going forward at any level, federal or state,” said Flatt. “We are not so much looking at the replacement of the Clean Power Plan (CPP) because I think the economics are already pushing us in that direction, particularly with the Inflation Reduction Act. We are looking toward what does this mean for the regulation of other sectors.”

The 6-3 majority decision stemmed from the vast purview of the major questions doctrine. The Supreme Court has not specifically outlined its scope, requiring federal agencies to indicate clear congressional authorization for their actions.

“The majority decision effectively asserts that EPA is trying to become FERC (the Federal Energy Regulatory Commission) and attempting to extend its regulatory authority over the electrical generation infrastructure and the electricity distribution systems of the United States,” Hester stated. “The opinion points out that EPA itself, in requesting additional funding to write the Clean Power Plan, admitted that it needed to hire new people to work in this area because EPA doesn’t usually regulate it this way.”

In such, Congress designed a federal law to authorize the EPA to regulate carbon dioxide emissions related to climate change and proactively protect public welfare. Under the Clean Air Act, the CPP determines a federal-state system of emission reduction for coal and natural gas plants to reduce and maintain pollution. It provides the legal authority to control carbon pollution from the U.S. fleet of fossil-fueled power plants.

“One of the most fascinating outcomes of this is that the market had already moved from an economic perspective. Natural gas was so efficient and so cheap that it had already replaced coal in many ways," Jackson said. “It wasn’t that the CPP had been implemented, but that the goals of the CPP in terms of greenhouse gas reductions were met.”

Commenting on the issues raised in the dissenting opinion in West Virginia v. EPA Jackson said, “it is a huge power the court now has. It can take any facet of American life that it views as being ‘major,’ important, sweeping or otherwise and decide that Congress didn’t speak to an issue in a particular way and take away executive branch action.”

Presented via Zoom, the program was worth 1.5 hours of Texas MCLE and was the second in a series of presentations.

The next program in the Supreme Court Update Series will cover Law and Religion on Tuesday, Oct. 25 at 5:30 p.m. CT. Click here for more information on the series.

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