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Clean Water Current

Supreme Court Limits – But Does Not Eliminate – EPA Authority to Regulate Greenhouse Gasses Under the Clean Air Act

Jun 30, 2022

In a 6-3 decision, the U.S. Supreme Court held June 30 that Clean Air Act (CAA) Section 111(d) does not give the U.S. Environmental Protection Agency (EPA) authority to address climate change by effectively mandating fuel switching at existing power plants. 

However, in issuing its decision, the Court did not go so far as to adopt the broad readings of legal concepts such as “nondelegation” and “major questions” espoused by certain parties in the litigation. 

Rather, the Court undertook the exact type of statutory analysis urged by NACWA in the brief it jointly filed with electric utilities.  That brief sought to push back against these novel interpretations of environmental laws, and to preserve EPA’s general authority to regulate greenhouse gasses under the CAA and the legal certainty such regulation provides to utilities nationwide. 

Notably, though the Court did find that the case involved a so-called “major question,” the majority decision applied that doctrine in the more traditional sense of using it to inform its analysis of the statutory text. 

Therefore, although the Court did not agree with EPA’s more expansive read of the restrictions it could impose on power plants under Section 111(d), it also did not read the CAA in such a way as to lead to the widespread regulatory chaos that could have ensued under theories advanced by some parties in the litigation. 

While not ending the authority of EPA to regulate climate change, the Court’s decision will limit the Biden administration’s options as it continues to craft new greenhouse gas regulations.  In the interim, the decision puts back in place the Trump administration’s Affordable Clean Energy rule, though it is highly unlikely that the current EPA will work to enforce it. 

NACWA will continue to analyze the decision and will provide members with more information in the coming weeks.  Please contact NACWA’s General Counsel, Amanda Aspatore, with any questions.  

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