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Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution to the crisis of the day. But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in § 111(d), 42 U.S.C.S. § 7411(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.
The Clean Act authorized the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into the air. Since the passage of the Act 50 years ago, the EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, the EPA issued a new rule concluding that the best system of emission reduction for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources. A number of States and private parties filed petitions for review, challenging the EPA’s enactment of the new rule. The court held that the EPA misunderstood the scope of its authority under the Clean Air Act. The court’s decision was quickly followed by another change In the Presidential administrations. One month later, EPA moved the court to partially stay the issuance of its mandate. No party opposed the motion, and the court accordingly stayed its vacatur of the Agency’s repeal of the Clean Power Plan. Petitions for certiorari were filed.
Did Congress grant EPA the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan?
The court initially held that petitioners had standing as the lower court's judgment purported to revive the Clean Power Plan, thereby requiring that the States more stringently regulate power plan emissions within their borders. The government had not shown that subsequent agency and judicial action mooted the case as it had not suggested that it would not reimpose emission limits predicated on generation shifting if the litigation was resolved in its favor. The court then held that the review of the authority claimed per 42 U.S.C.S. § 7411(d) was subject to the major questions doctrine given that EPA had used an ancillary and gap-filler provision of the Clean Air Act to substantially restructure the American energy market. Per § 7411(d), it was not plausible that Congress gave EPA clear authority to devise carbon emissions caps based on a generation shifting approach.