Clean Water Current

The U.S. Supreme Court heard arguments earlier this week over the U.S. Environmental Protection Agency’s (EPA) regulation of greenhouse gasses (GHGs) in the case of West Virginia v. EPA.

At issue in the case is whether EPA can effectively require fuel switching at existing power plants under Section 111(d) of the Clean Air Act (CAA). 

However, as the brief NACWA filed with the Edison Electric Institute (EEI), which represents U.S. investor-owned electric utilities, points out, the broader versions of legal doctrines being espoused in the case call into question EPA’s authority to address climate change at all under the CAA – and could even impact regulations under the Clean Water Act (CWA).

NACWA and EEI’s brief argues that a ruling supporting such theories, particularly certain versions of the “major questions” doctrine, could subject utilities to a raft of citizen lawsuits that are currently precluded by EPA’s authority to regulate GHGs.  The brief also notes that such a ruling could have spillover effects to other agency actions, including EPA’s authority under the CWA.

Litigants on both sides of the case hit upon several topics throughout the lengthy argument, including whether the absence of any current EPA GHG regulations means that there is no “major question” – or even harm – for the Court to address at this time.  Several Justices seemed to allude to arguments made in NACWA and EEI’s brief during their questions. 

The Court will now take the case under advisement, with a ruling expected in the coming months.  Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.