Supreme Court Decision on WV vs. EPA Mischaracterized by News Media

The Decision Does Not Prohibit EPA from Regulating Carbon Dioxide from Coal-Fired Power Plants, Says Former EPA Enforcement Director

Washington, D.C. – Eric Schaeffer, the Executive Director of the Environmental Integrity Project, issued the following statement today in reaction to the U.S. Supreme Court’s decision in the case West Virginia vs. EPA.

“The decision does not prohibit EPA from regulating carbon emissions from coal plants, as some media have reported,” said Schaeffer, the former Director Civil Enforcement at EPA. “The majority on the Supreme Court recognizes EPA’s right to do so by establishing emission limits that are imposed directly on power plants, which could be based on fuel switching, efficiency improvements or other technologies.”

“By contrast, the Obama Administration’s Clean Power Plan – which the Supreme Court ruled against today — favored the development of state or regional plans that, over time, would reduce carbon by increasing the amount of electricity supplied by low or zero carbon sources. Many power companies favor this approach as a more predictable and cost-effective way to reduce greenhouse gas emissions from the power sector, which is why power companies filed briefs asking the Supreme Court not to disallow this approach, as the Court did today.”

The Supreme Court’s majority opinion refers to the Clean Power Plan’s expectation that coal-based generation would shrink to 27 percent of total U.S. generation by 2030. But a recent Energy Information Administration report shows that coal’s share of generation had already dropped to 21.8 percent of generation by 2021.

“As the court’s dissenting opinion points out, this underscores how modest the original goals of the Clean Power Plan actually were,” Schaeffer said. “Coal’s decline has been driven by cheap natural gas, the rise of renewables (which generated almost as much electricity as coal last year), and by power companies choosing to retire coal-fired boilers rather than upgrade to meet requirements for long-delayed pollution control requirement.”

Schaeffer also made the following points in his reaction to the court decision:

  1. At the very least, the Supreme Court had the discretion to decline to review this rule, which has never been implemented and is clearly outdated. The Biden Administration has made clear that it will not enforce or revive the Clean Power Plan, and that it plans to instead issue a new proposal that could adopt a very different approach. In short, the Court’s decision today amounts to an advisory opinion about a rule that is clearly a dead letter. Courts are supposed to decide live cases or controversies under the Constitution, not issue advisory opinions, and judicial conservatives in particular used to be especially insistent on recognizing the distinction. But that was then.
  2. The Biden Administration’s EPA needs to get its own proposal to revise carbon limits for power plants out for public review as soon as possible. In the meantime, EPA can make progress by implementing long overdue standards to limit toxic discharges from power plants that are scheduled to take effect next year, and which are likely to encourage the additional retirement of aging coal plants. The Senate can also confirm David Uhlmann as head of EPA’s enforcement office. This would give the agency the leadership it needs to crack down on illegal emissions of methane and chlorinated fluorocarbons that accelerate global warming.
  3. The Clean Power Plan was based on Section 111 of the Clean Air Act, which allows EPA to regulate carbon and other pollutants from existing sources through adoption of the “best system of emission reductions,” taking cost and other environmental impacts into account.  As the Supreme Court’s dissenting opinion points out, the majority never really explains why this broad language disallows the kind of state and regional planning targets adopted in the Clean Power Plan.

Click here for a copy of the Supreme Court decision.

The Environmental Integrity Project is a 20-year-old nonprofit, nonpartisan organization, based in Washington, D.C., and Austin, Texas, dedicated to enforcing environmental laws and strengthening policy to protect public health and the environment.

Media Contact: Tom Pelton, Environmental Integrity Project (443) 510-2574 or