NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–1530, 20–1531, 20–1778 and
20–1780
_________________
WEST VIRGINIA, et al.,
PETITIONERS
20–1530
v.
ENVIRONMENTAL PROTECTION AGENCY,
et al.
THE NORTH AMERICAN COAL CORPORATION,
PETITIONER
20–1531
v.
ENVIRONMENTAL PROTECTION AGENCY,
et al.
WESTMORELAND MINING HOLDINGS LLC,
PETITIONER
20–1778
v.
ENVIRONMENTAL PROTECTION AGENCY,
et al.
NORTH DAKOTA, PETITIONER
20–1780
v.
ENVIRONMENTAL PROTECTION AGENCY,
et al.
on writs of certiorari to the united states
court of appeals for the district of columbia circuit
[June 30, 2022]
Chief Justice Roberts delivered the opinion of
the Court.
The Clean Air Act authorizes the Environmental
Protection Agency to regulate power plants by setting a “standard
of performance” for their emission of certain pollutants into the
air. 84Stat. 1683, 42 U. S. C. §7411(a)(1). That standard
may be different for new and existing plants, but in each case it
must reflect the “best system of emission reduction” that the
Agency has determined to be “adequately demonstrated” for the
particular category. §§7411(a)(1), (b)(1), (d). For existing
plants, the States then implement that requirement by issuing rules
restricting emissions from sources within their borders.
Since passage of the Act 50 years ago, 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, 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.
The question before us is whether this broader
conception of EPA’s authority is within the power granted to it by
the Clean Air Act.
I
A
The Clean Air Act establishes three main
regulatory programs to control air pollution from stationary
sources such as power plants. Clean Air Amendments of 1970, 84Stat.
1676, 42 U. S. C. §7401
et seq. One program
is the New Source Performance Standards program of Section 111, at
issue here. The other two are the National Ambient Air Quality
Standards (NAAQS) program, set out in Sections 108 through 110 of
the Act, 42 U. S. C. §§7408–7410, and the Hazardous Air
Pollutants (HAP) program, set out in Section 112, §7412. To
understand the place and function of Section 111 in the statutory
scheme, some background on the other two programs is in order.
The NAAQS program addresses air pollutants that
“may reasonably be anticipated to endanger public health or
welfare,” and “the presence of which in the ambient air results
from numerous or diverse mobile or stationary sources.”
§7408(a)(1). After identifying such pollutants, EPA establishes a
NAAQS for each. The NAAQS represents “the maximum airborne
concentration of [the] pollutant that the public health can
tolerate.”
Whitman v.
American Trucking Assns.,
Inc.,
531 U.S.
457, 465 (2001); see §7409(b). EPA, though, does not choose
which sources must reduce their pollution and by how much to meet
the ambient pollution target. Instead, Section 110 of the Act
leaves that task in the first instance to the States, requiring
each “to submit to [EPA] a plan designed to implement and maintain
such standards within its boundaries.”
Train v.
Natural
Resources Defense Council,
Inc.,
421 U.S.
60, 65 (1975); §7410.
The second major program governing stationary
sources is the HAP program. The HAP program primarily targets
pollutants, other than those already covered by a NAAQS, that
present “a threat of adverse human health effects,” including
substances known or anticipated to be “carcinogenic, mutagenic,
teratogenic, neurotoxic,” or otherwise “acutely or chronically
toxic.” §7412(b)(2).
EPA’s regulatory role with respect to these
toxic pollutants is different in kind from its role in
administering the NAAQS program. There, EPA is generally limited to
determining the maximum safe amount of covered pollutants in the
air. As to each hazardous pollutant, by contrast, the Agency must
promulgate emissions standards for both new and existing major
sources. §7412(d)(1). Those standards must “require the maximum
degree of reduction in emissions . . . that the [EPA]
Administrator, taking into consideration the cost of achieving such
emission reduction, and any non-air quality health and
environmental impacts and energy requirements, determines is
achievable . . . through application of measures,
processes, methods, systems or techniques” of emission reduction.
§7412(d)(2). In other words, EPA must directly require all covered
sources to reduce their emissions to a certain level. And it
chooses that level by determining the “maximum degree of reduction”
it considers “achievable” in practice by using the best existing
technologies and methods. §7412(d)(3).
Thus, in the parlance of environmental law,
Section 112 directs the Agency to impose “
technology-based
standard[s] for hazardous emissions,”
Alaska Dept. of
Environmental Conservation v.
EPA, 540 U.S. 461, 485,
n. 12 (2004) (emphasis added). This sort of
“ ‘technology-based’ approach focuses upon the control
technologies that are available to industrial entities and requires
the agency to . . . ensur[e] that regulated firms adopt
the appropriate cleanup technology.” T. McGarity, Media-Quality,
Technology, and Cost-Benefit Balancing Strategies for Health and
Environmental Regulation, 46 Law & Contemp. Prob. 159, 160
(Summer 1983) (McGarity). (Such “technologies” are not limited to
literal technology, such as scrubbers; “changes in the design and
operation” of the facility, or “in the way that employees perform
their tasks,” are also available options.
Id., at 163,
n. 18.)
The third air pollution control scheme is the
New Source Performance Standards program of Section 111. §7411.
That section directs EPA to list “categories of stationary sources”
that it determines “cause[ ], or contribute[ ]
significantly to, air pollution which may reasonably be anticipated
to endanger public health or welfare.” §7411(b)(1)(A). Under
Section 111(b), the Agency must then promulgate for each category
“Federal standards of performance for new sources,” §7411(b)(1)(B).
A “standard of performance” is one that
“reflects the degree of emission
limitation achievable through the application of the best system of
emission reduction which (taking into account the cost of achieving
such reduction and any nonair quality health and environmental
impact and energy requirements) the [EPA] Administrator determines
has been adequately demonstrated.” §7411(a)(1).
Thus, the statute directs EPA to (1)
“determine[ ],” taking into account various factors, the “best
system of emission reduction which . . . has been
adequately demonstrated,” (2) ascertain the “degree of
emission limitation achievable through the application” of that
system, and (3) impose an emissions limit on new stationary sources
that “reflects” that amount.
Ibid.; see also 80 Fed. Reg.
64538 (2015). Generally speaking, a source may achieve that
emissions cap any way it chooses; the key is that its pollution be
no more than the amount “achievable through the application of the
best system of emission reduction . . . adequately
demonstrated,” or the BSER. §7411(a)(1); see §7411(b)(5). EPA
undertakes this analysis on a pollutant-by-pollutant basis,
establishing different standards of performance with respect to
different pollutants emitted from the same source category. See,
e.g., 73 Fed. Reg. 35838 (2008); 42 Fed. Reg. 22510
(1977).
Although the thrust of Section 111 focuses on
emissions limits for
new and
modified sources—as its
title indicates—the statute also authorizes regulation of certain
pollutants from
existing sources. Under Section 111(d), once
EPA “has set
new source standards addressing emissions of a
particular pollutant under . . . section 111(b),” 80 Fed.
Reg. 64711, it must then address emissions of that same pollutant
by existing sources—but only if they are not already regulated
under the NAAQS or HAP programs. §7411(d)(1). Existing power
plants, for example, emit many pollutants covered by a NAAQS or HAP
standard. Section 111(d) thus “operates as a gap-filler,”
empowering EPA to regulate harmful emissions not already controlled
under the Agency’s other authorities.
American Lung Assn. v.
EPA, 985 F.3d 914, 932 (CADC 2021).
Although the States set the actual rules
governing existing power plants, EPA itself still retains the
primary regulatory role in Section 111(d). The Agency, not the
States, decides the amount of pollution reduction that must
ultimately be achieved. It does so by again determining, as when
setting the new source rules, “the best system of emission
reduction . . . that has been adequately demonstrated for
[existing covered] facilities.” 40 CFR §60.22(b)(5) (2021); see
also 80 Fed. Reg. 64664, and n. 1. The States then submit
plans containing the emissions restrictions that they intend to
adopt and enforce in order not to exceed the permissible level of
pollution established by EPA. See §§60.23, 60.24; 42
U. S. C. §7411(d)(1).
Reflecting the ancillary nature of Section
111(d), EPA has used it only a handful of times since the enactment
of the statute in 1970. See 80 Fed. Reg. 64703, and n. 275
(past regulations pertained to “four pollutants from five source
categories”). For instance, the Agency has established emissions
limits on acid mist from sulfuric acid production, 41 Fed. Reg.
48706 (1976) (identifying “fiber mist eliminator” technology as
BSER); sulfide gases released by kraft pulp mills, 44 Fed. Reg.
29829 (1979) (determining BSER to be a combination of scrubbers,
incineration, filtration systems, and temperature control); and
emissions of various harmful gases from municipal landfills, 61
Fed. Reg. 9907 (1996) (setting BSER as use of a flare to combust
the gases). It was thus only a slight overstatement for one of the
architects of the 1990 amendments to the Clean Air Act to refer to
Section 111(d) as an “obscure, never-used section of the law.”
Hearings on S. 300 et al. before the Subcommittee on
Environmental Protection of the Senate Committee on Environment and
Public Works, 100th Cong., 1st Sess., 13 (1987) (remarks of Sen.
Durenberger).
B
Things changed in October 2015, when EPA
promulgated two rules addressing carbon dioxide pollution from
power plants—one for new plants under Section 111(b), the other for
existing plants under Section 111(d). Both were premised on the
Agency’s earlier finding that carbon dioxide is an “air pollutant”
that “may reasonably be anticipated to endanger public health or
welfare” by causing climate change. 80 Fed. Reg. 64530. Carbon
dioxide is not subject to a NAAQS and has not been listed as a
toxic pollutant.
The first rule announced by EPA established
federal carbon emissions limits for new power plants of two
varieties: fossil-fuel-fired electric steam generating units
(mostly coal fired) and natural-gas-fired stationary combustion
turbines.
Id., at 64512. Following the statutory process set
out above, the Agency determined the BSER for the two categories of
sources. For steam generating units, for instance, EPA determined
that the BSER was a combination of high-efficiency production
processes and carbon capture technology. See 80 Fed. Reg. 64512.
EPA then set the emissions limit based on the amount of carbon
dioxide that a plant would emit with these technologies in place.
Id., at 64513.
The second rule was triggered by the first:
Because EPA was now regulating carbon dioxide from
new coal
and gas plants, Section 111(d) required EPA to also address carbon
emissions from
existing coal and gas plants. See
§7411(d)(1). It did so through what it called the Clean Power Plan
rule.
In that rule, EPA established “final emission
guidelines for states to follow in developing plans” to regulate
existing power plants within their borders.
Id., at 64662.
To arrive at the guideline limits, EPA did the same thing it does
when imposing federal regulations on new sources: It identified the
BSER.
The BSER that the Agency selected for existing
coal-fired power plants, however, was quite different from the BSER
it had chosen for new sources. The BSER for existing plants
included three types of measures, which the Agency called “building
blocks.”
Id., at 64667. The first building block was “heat
rate improvements” at coal-fired plants—essentially practices such
plants could undertake to burn coal more efficiently.
Id.,
at 64727
. But such improvements, EPA stated, would “lead to
only small emission reductions,” because coal-fired power plants
were already operating near optimum efficiency.
Ibid. On the
Agency’s view, “much larger emission reductions [were] needed from
[coal-fired plants] to address climate change.”
Ibid.
So the Agency included two additional building
blocks in its BSER, both of which involve what it called
“generation shifting from higher-emitting to lower-emitting”
producers of electricity.
Id., at 64728. Building block two
was a shift in electricity production from existing coal-fired
power plants to natural-gas-fired plants.
Ibid. Because
natural gas plants produce “typically less than half as much”
carbon dioxide per unit of electricity created as coal-fired
plants, the Agency explained, “this generation shift [would]
reduce[] CO2 emissions.”
Ibid. Building block three worked
the same way, except that the shift was from both coal- and
gas-fired plants to “new low- or zero-carbon generating capacity,”
mainly wind and solar.
Id., at 64729, 64748. “Most of the
CO2 controls” in the rule came from the application of building
blocks two and three.
Id., at 64728.
The Agency identified three ways in which a
regulated plant operator could implement a shift in generation to
cleaner sources.
Id., at 64731. First, an operator could
simply reduce the regulated plant’s own production of electricity.
Second, it could build a new natural gas plant, wind farm, or solar
installation, or invest in someone else’s existing facility and
then increase generation there.
Ibid. Finally, operators
could purchase emission allowances or credits as part of a
cap-and-trade regime.
Id., at 64731–64732. Under such a
scheme, sources that achieve a reduction in their emissions can
sell a credit representing the value of that reduction to others,
who are able to count it toward their own applicable emissions
caps.
EPA explained that taking any of these steps
would implement a sector-wide shift in electricity production from
coal to natural gas and renewables.
Id., at 64731. Given the
integrated nature of the power grid, “adding electricity to the
grid from one generator will result in the instantaneous reduction
in generation from other generators,” and “reductions in generation
from one generator lead to the instantaneous increase in
generation” by others.
Id., at 64769. So coal plants,
whether by reducing their own production, subsidizing an increase
in production by cleaner sources, or both, would cause a shift
toward wind, solar, and natural gas.
Having decided that the “best system of emission
reduction . . . adequately demonstrated” was one that
would reduce carbon pollution mostly by moving production to
cleaner sources, EPA then set about determining “the degree of
emission limitation achievable through the application” of that
system. 42 U. S. C. §7411(a)(1). The Agency recognized
that—given the nature of generation shifting—it could choose from
“a wide range of potential stringencies for the BSER.” 80 Fed. Reg.
64730. Put differently, in translating the BSER into an operational
emissions limit, EPA could choose whether to require anything from
a little generation shifting to a great deal. The Agency settled on
what it regarded as a “reasonable” amount of shift, which it based
on modeling of how much more electricity both natural gas and
renewable sources could supply without causing undue cost increases
or reducing the overall power supply.
Id., at 64797–64811.
Based on these changes, EPA projected that by 2030, it would be
feasible to have coal provide 27% of national electricity
generation, down from 38% in 2014.
Id., at 64665, 64694; see
Dept. of Energy, U. S. Energy Information Admin., Monthly
Energy Review (May 2015), Electricity Net Generation: Electric
Power Sector, p. 106 (Table 7.2b).
From these significant projected reductions in
generation, EPA developed a series of complex equations to
“determine the emission performance rates” that States would be
required to implement. 80 Fed. Reg. 64815. The calculations
resulted in numerical emissions ceilings so strict that no existing
coal plant would have been able to achieve them without engaging in
one of the three means of shifting generation described above.
Indeed, the emissions limit the Clean Power Plan established for
existing power plants was actually
stricter than the cap
imposed by the simultaneously published standards for
new
plants. Compare
id., at 64742, with
id., at
64513.
The point, after all, was to compel the transfer
of power generating capacity from existing sources to wind and
solar. The White House stated that the Clean Power Plan would
“drive a[n] . . . aggressive transformation in the
domestic energy industry.” White House Fact Sheet, App. in
American Lung Assn. v.
EPA, No. 19–1140 etc. (CADC),
p. 2076. EPA’s own modeling concluded that the rule would
entail billions of dollars in compliance costs (to be paid in the
form of higher energy prices), require the retirement of dozens of
coal-fired plants, and eliminate tens of thousands of jobs across
various sectors. EPA, Regulatory Impact Analysis for the Clean
Power Plan Final Rule 3–22, 3–30, 3–33, 6–24, 6–25 (2015). The
Energy Information Administration reached similar conclusions,
projecting that the rule would cause retail electricity prices to
remain persistently 10% higher in many States, and would reduce GDP
by at least a trillion 2009 dollars by 2040. Dept. of Energy,
Analysis of the Impacts of the Clean Power Plan 21, 63–64 (May
2015).
C
These projections were never tested, because
the Clean Power Plan never went into effect. The same day that EPA
promulgated the rule, dozens of parties (including 27 States)
petitioned for review in the D. C. Circuit. After that court
declined to enter a stay of the rule, the challengers sought the
same relief from this Court. We granted a stay, preventing the rule
from taking effect.
West Virginia v.
EPA, 577 U.S.
1126 (2016). The Court of Appeals later heard argument on the
merits en banc. But before it could issue a decision, there was a
change in Presidential administrations. The new administration
requested that the litigation be held in abeyance so that EPA could
reconsider the Clean Power Plan. The D. C. Circuit obliged,
and later dismissed the petitions for review as moot.
EPA eventually repealed the rule in 2019,
concluding that the Clean Power Plan had been “in excess of its
statutory authority” under Section 111(d). 84 Fed. Reg. 32523
(2019). Specifically, the Agency concluded that generation shifting
should not have been considered as part of the BSER. The Agency
interpreted Section 111 as “limit[ing] the BSER to those systems
that can be put into operation
at a building, structure,
facility, or installation,” such as “add-on controls” and
“inherently lower-emitting processes/practices/designs.”
Id., at 32524. It then explained that the Clean Power Plan,
rather than setting the standard “based on the application of
equipment and practices at the level of an individual facility,”
had instead based it on “a shift in the energy generation mix at
the grid level,”
id., at 32523—not the sort of measure that
has “a potential for application to an individual source.”
Id., at 32524.
The Agency determined that “the interpretative
question raised” by the Clean Power Plan—“
i.e., whether a
‘system of emission reduction’ can consist of generation-shifting
measures”—fell under the “major question doctrine.”
Id., at
32529. Under that doctrine, EPA explained, courts “expect Congress
to speak clearly if it wishes to assign to an agency decisions of
vast economic and political significance.”
Ibid. (quoting
Utility Air Regulatory Group v.
EPA,
573 U.S.
302, 324 (2014) (internal quotation marks omitted)). The Agency
concluded that the Clean Power Plan was such a decision, for a
number of reasons. Its “generation-shifting scheme was projected to
have billions of dollars of impact.” 84 Fed. Reg. 32529. “[N]o
section 111 rule of the scores issued ha[d] ever been based on
generation shifting.”
Ibid. And that novel reading of the
statute would empower EPA “to order the wholesale restructuring of
any industrial sector” based only on its discretionary assessment
of “such factors as ‘cost’ and ‘feasibility.’ ”
Ibid.
EPA argued that under the major questions
doctrine, a clear statement was necessary to conclude that Congress
intended to delegate authority “of this breadth to regulate a
fundamental sector of the economy.”
Ibid. It found none.
“Indeed,” it concluded, given the text and structure of the
statute, “Congress has directly spoken to this precise question and
precluded” the use of measures such as generation shifting.
Ibid.
In the same rulemaking, the Agency replaced the
Clean Power Plan by promulgating a different Section 111(d)
regulation, known as the Affordable Clean Energy (ACE) Rule.
Id., at 32532. Based on its view of what measures may
permissibly make up the BSER, EPA determined that the best system
would be akin to building block one of the Clean Power Plan: a
combination of equipment upgrades and operating practices that
would improve facilities’ heat rates.
Id., at 32522, 32537.
The ACE Rule determined that the application of its BSER measures
would result in only small reductions in carbon dioxide emissions.
Id., at 32561.
D
A number of States and private parties
immediately filed petitions for review in the D. C. Circuit,
challenging EPA’s repeal of the Clean Power Plan and its enactment
of the replacement ACE Rule. Other States and private
entities—including petitioners here West Virginia, North Dakota,
Westmoreland Mining Holdings LLC, and The North American Coal
Corporation (NACC)—intervened to defend both actions.
The Court of Appeals consolidated all 12
petitions for review into one case. It then held that EPA’s “repeal
of the Clean Power Plan rested critically on a mistaken reading of
the Clean Air Act”—namely, that generation shifting cannot be a
“system of emission reduction” under Section 111. 985 F. 3d,
at 995. To the contrary, the court concluded, the statute could
reasonably be read to encompass generation shifting. As part of
that analysis, the Court of Appeals concluded that the major
questions doctrine did not apply, and thus rejected the need for a
clear statement of congressional intent to delegate such power to
EPA.
Id., at 959–968. Having found that EPA misunderstood
the scope of its authority under the Clean Air Act, the Court
vacated the Agency’s repeal of the Clean Power Plan and remanded to
the Agency for further consideration.
Id., at 995
. It
also vacated and remanded the replacement rule, the ACE Rule, for
the same reason.
Ibid.
The court’s decision, handed down on January 19,
2021, was quickly followed by another change in Presidential
administrations. One month later, EPA moved the Court of Appeals to
partially stay the issuance of its mandate as it pertained to the
Clean Power Plan. The Agency did so to ensure that the Clean Power
Plan would not immediately go back into effect. Respondents’ Motion
for a Partial Stay of Issuance of the Mandate in
American Lung
Assn. v.
EPA, No. 19–1140 etc. (CADC), p. 4. EPA
believed that such a result would not make sense while it was in
the process of considering whether to promulgate a new Section
111(d) rule.
Ibid. No party opposed the motion, and the
court accordingly stayed its vacatur of the Agency’s repeal of the
Clean Power Plan.
Westmoreland, NACC, and the States defending the
repeal of the Clean Power Plan all filed petitions for certiorari.
We granted the petitions and consolidated the cases. 595 U. S.
___ (2021).
II
We first consider the Government’s contention
that no petitioner has Article III standing to seek our review.
Although most disputes over standing concern
whether a plaintiff has satisfied the requirement when filing suit,
“Article III demands that an actual controversy persist throughout
all stages of litigation.”
Hollingsworth v.
Perry,
570 U.S.
693, 705 (2013) (internal quotation marks omitted). The
requirement of standing “must be met by persons seeking appellate
review, just as it must be met by persons appearing in courts of
first instance.”
Arizonans for Official English v.
Arizona,
520 U.S.
43, 64 (1997). In considering a litigant’s standing to appeal,
the question is whether it has experienced an injury “fairly
traceable to the
judgment below.”
Food Marketing
Institute v.
Argus Leader Media, 588 U. S. ___, ___
(2019) (slip op., at 4) (emphasis added; internal quotation marks
omitted). If so, and a “favorable ruling” from the appellate court
“would redress [that] injury,” then the appellant has a cognizable
Article III stake.
Ibid.
Here, it is apparent that at least one group of
petitioners—the state petitioners—are injured by the Court of
Appeals’ judgment. That judgment vacated “the ACE rule
and
its embedded repeal of the Clean Power Plan,” 985 F. 3d, at
995 (emphasis added), and accordingly purports to bring the Clean
Power Plan back into legal effect. Thus, to the extent the Clean
Power Plan harms the States, the D. C. Circuit’s judgment
inflicts the same injury. And there can be “little question” that
the rule does injure the States, since they are “the object
of ” its requirement that they more stringently regulate power
plant emissions within their borders.
Lujan v.
Defenders
of Wildlife,
504 U.S.
555, 561–562 (1992).
The Government counters that “agency and
judicial actions” subsequent to the court’s entry of judgment have
“eliminated any . . . possibility” of injury. Brief for
Federal Respondents 16. First, after the decision, EPA informed the
Court of Appeals that it does not intend to enforce the Clean Power
Plan because it has decided to promulgate a new Section 111(d)
rule. Second, on EPA’s request, the lower court stayed the part of
its judgment that vacated the repeal, pending that new rulemaking.
“These circumstances,” says the Government, “have
mooted the
prior dispute as to the CPP Repeal Rule’s legality.”
Id., at
17 (emphasis added).
That Freudian slip, however, reveals the basic
flaw in the Government’s argument: It is the doctrine of
mootness, not standing, that addresses whether “an
intervening circumstance [has] deprive[d] the plaintiff of a
personal stake in the outcome of the lawsuit.”
Genesis
HealthCare Corp. v.
Symczyk,
569 U.S.
66, 72 (2013) (internal quotation marks omitted); see also
Friends of the Earth,
Inc. v.
Laidlaw
Environmental Services (TOC),
Inc.,
528 U.S.
167, 189–192 (2000). The distinction matters because the
Government, not petitioners, bears the burden to establish that a
once-live case has become moot.
Id., at 189;
Adarand
Constructors,
Inc. v.
Slater,
528 U.S.
216, 222 (2000) (
per curiam).
That burden is “heavy” where, as here, “[t]he
only conceivable basis for a finding of mootness in th[e] case is
[the respondent’s] voluntary conduct.”
Friends of the Earth,
528 U. S., at 189. Although the Government briefly argues that
the lower court’s stay of its mandate extinguished the controversy,
it cites no authority for that proposition, and it does not make
sense: Lower courts frequently stay their mandates when notified
that the losing party intends to seek our certiorari review. So the
Government’s mootness argument boils down to its representation
that EPA has no intention of enforcing the Clean Power Plan prior
to promulgating a new Section 111(d) rule.
But “voluntary cessation does not moot a case”
unless it is “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.”
Parents Involved in
Community Schools v.
Seattle School Dist. No. 1,
551 U.S.
701, 719 (2007). Here the Government “nowhere suggests that if
this litigation is resolved in its favor it will not” reimpose
emissions limits predicated on generation shifting; indeed, it
“vigorously defends” the legality of such an approach.
Ibid.
We do not dismiss a case as moot in such circumstances. See
City
of Mesquite v.
Aladdin’s Castle,
Inc.,
455 U.S.
283, 288–289 (1982). The case thus remains justiciable, and we
may turn to the merits.
III
A
In devising emissions limits for power plants,
EPA first “determines” the “best system of emission reduction”
that—taking into account cost, health, and other factors—it finds
“has been adequately demonstrated.” 42 U. S. C.
§7411(a)(1). The Agency then quantifies “the degree of emission
limitation achievable” if that best system were applied to the
covered source.
Ibid.; see also 80 Fed. Reg. 64719. The
BSER, therefore, “is the central determination that the EPA must
make in formulating [its emission] guidelines” under Section 111.
Id., at 64723. The issue here is whether restructuring the
Nation’s overall mix of electricity generation, to transition from
38% coal to 27% coal by 2030, can be the “best system of emission
reduction” within the meaning of Section 111.
“It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.”
Davis v.
Michigan Dept. of Treasury,
489 U.S.
803, 809 (1989). Where the statute at issue is one that confers
authority upon an administrative agency, that inquiry must be
“shaped, at least in some measure, by the nature of the question
presented”—whether Congress in fact meant to confer the power the
agency has asserted.
FDA v.
Brown & Williamson
Tobacco Corp.,
529 U.S.
120, 159 (2000)
. In the ordinary case, that context has
no great effect on the appropriate analysis. Nonetheless, our
precedent teaches that there are “extraordinary cases” that call
for a different approach—cases in which the “history and the
breadth of the authority that [the agency] has asserted,” and the
“economic and political significance” of that assertion, provide a
“reason to hesitate before concluding that Congress” meant to
confer such authority.
Id., at 159–160.
Such cases have arisen from all corners of the
administrative state. In
Brown & Williamson, for
instance, the Food and Drug Administration claimed that its
authority over “drugs” and “devices” included the power to
regulate, and even ban, tobacco products.
Id., at 126–127.
We rejected that “expansive construction of the statute,”
concluding that “Congress could not have intended to delegate” such
a sweeping and consequential authority “in so cryptic a fashion.”
Id., at 160. In
Alabama Assn. of Realtors v.
Department of Health and Human Servs., 594 U. S. ___,
___ (2021) (
per curiam) (slip op., at 3), we concluded
that the Centers for Disease Control and Prevention could not,
under its authority to adopt measures “necessary to prevent the
. . . spread of ” disease, institute a nationwide
eviction moratorium in response to the COVID–19 pandemic. We found
the statute’s language a “wafer-thin reed” on which to rest such a
measure, given “the sheer scope of the CDC’s claimed authority,”
its “unprecedented” nature, and the fact that Congress had failed
to extend the moratorium after previously having done so.
Id., at ___–___ (slip op., at 6–8).
Our decision in
Utility Air addressed
another question regarding EPA’s authority—namely, whether EPA
could construe the term “air pollutant,” in a specific provision of
the Clean Air Act, to cover greenhouse gases. 573 U. S., at
310. Despite its textual plausibility, we noted that the Agency’s
interpretation would have given it permitting authority over
millions of small sources, such as hotels and office buildings,
that had never before been subject to such requirements.
Id., at 310, 324. We declined to uphold EPA’s claim of
“unheralded” regulatory power over “a significant portion of the
American economy.”
Id., at 324. In
Gonzales v.
Oregon,
546 U.S.
243 (2006), we confronted the Attorney General’s assertion that
he could rescind the license of any physician who prescribed a
controlled substance for assisted suicide, even in a State where
such action was legal. The Attorney General argued that this came
within his statutory power to revoke licenses where he found them
“inconsistent with the public interest,” 21 U. S. C.
§823(f ). We considered the “idea that Congress gave [him]
such broad and unusual authority through an implicit delegation
. . . not sustainable.” 546 U. S., at 267. Similar
considerations informed our recent decision invalidating the
Occupational Safety and Health Administration’s mandate that “84
million Americans . . . either obtain a COVID–19 vaccine
or undergo weekly medical testing at their own expense.”
National Federation of Independent Business v.
Occupational Safety and Health Administration, 595
U. S. ___, ___ (2022) (
per curiam) (slip op., at
5). We found it “telling that OSHA, in its half century of
existence,” had never relied on its authority to regulate
occupational hazards to impose such a remarkable measure.
Id., at ___ (slip op., at 8).
All of these regulatory assertions had a
colorable textual basis. And yet, in each case, given the various
circumstances, “common sense as to the manner in which Congress
[would have been] likely to delegate” such power to the agency at
issue,
Brown & Williamson, 529 U. S., at 133, made
it very unlikely that Congress had actually done so. Extraordinary
grants of regulatory authority are rarely accomplished through
“modest words,” “vague terms,” or “subtle device[s].”
Whitman, 531 U. S., at 468. Nor does Congress typically
use oblique or elliptical language to empower an agency to make a
“radical or fundamental change” to a statutory scheme.
MCI
Telecommunications Corp. v.
American Telephone &
Telegraph Co.,
512 U.S.
218, 229 (1994). Agencies have only those powers given to them
by Congress, and “enabling legislation” is generally not an “open
book to which the agency [may] add pages and change the plot line.”
E. Gellhorn & P. Verkuil, Controlling
Chevron- Based
Delegations, 20 Cardozo L. Rev. 989, 1011 (1999). We presume
that “Congress intends to make major policy decisions itself, not
leave those decisions to agencies.”
United States Telecom
Assn. v.
FCC, 855 F.3d 381, 419 (CADC 2017) (Kavanaugh,
J., dissenting from denial of rehearing en banc).
Thus, in certain extraordinary cases, both
separation of powers principles and a practical understanding of
legislative intent make us “reluctant to read into ambiguous
statutory text” the delegation claimed to be lurking there.
Utility Air, 573 U. S., at 324. To convince us
otherwise, something more than a merely plausible textual basis for
the agency action is necessary. The agency instead must point to
“clear congressional authorization” for the power it claims.
Ibid.
The dissent criticizes us for “announc[ing] the
arrival” of this major questions doctrine, and argues that each of
the decisions just cited simply followed our “ordinary method” of
“normal statutory interpretation,”
post, at 13, 15 (opinion
of Kagan, J.). But in what the dissent calls the “key case” in this
area,
Brown & Williamson,
post, at 15, the Court
could not have been clearer: “In extraordinary cases . . . there
may be reason to hesitate” before accepting a reading of a statute
that would, under more “ordinary” circumstances, be upheld. 529
U. S., at 159. Or, as we put it more recently, we “typically
greet” assertions of “extravagant statutory power over the national
economy” with “skepticism.”
Utility Air, 573 U. S., at
324. The dissent attempts to fit the analysis in these cases within
routine statutory interpretation, but the bottom line—a requirement
of “clear congressional authorization,”
ibid.—confirms that
the approach under the major questions doctrine is distinct.
As for the major questions doctrine
“label[ ],”
post, at 13, it took hold because it refers
to an identifiable body of law that has developed over a series of
significant cases all addressing a particular and recurring
problem: agencies asserting highly consequential power beyond what
Congress could reasonably be understood to have granted. Scholars
and jurists have recognized the common threads between those
decisions. So have we. See
Utility Air, 573 U. S., at
324 (citing
Brown & Williamson and
MCI);
King v.
Burwell, 576 U.S. 473, 486 (2015) (citing
Utility Air,
Brown & Williamson, and
Gonzales).
B
Under our precedents, this is a major
questions case. In arguing that Section 111(d) empowers it to
substantially restructure the American energy market, EPA
“claim[ed] to discover in a long-extant statute an unheralded
power” representing a “transformative expansion in [its] regulatory
authority.”
Utility Air, 573 U. S., at 324. It located
that newfound power in the vague language of an “ancillary
provision[ ]” of the Act,
Whitman, 531 U. S., at
468, one that was designed to function as a gap filler and had
rarely been used in the preceding decades. And the Agency’s
discovery allowed it to adopt a regulatory program that Congress
had conspicuously and repeatedly declined to enact itself.
Brown
& Williamson, 529 U. S., at 159–160;
Gonzales,
546 U. S., at 267–268;
Alabama Assn., 594 U. S.,
at ___, ___ (slip op., at 2, 8). Given these circumstances, there
is every reason to “hesitate before concluding that Congress” meant
to confer on EPA the authority it claims under Section 111(d).
Brown & Williamson, 529 U. S., at 159–160.
Prior to 2015, EPA had always set emissions
limits under Section 111 based on the application of measures that
would reduce pollution by causing the regulated source to operate
more cleanly. See,
e.g., 41 Fed. Reg. 48706 (requiring
“degree of control achievable through the application of fiber mist
eliminators”); see also
supra, at 6. It had never devised a
cap by looking to a “system” that would reduce pollution simply by
“shifting” polluting activity “from dirtier to cleaner sources.” 80
Fed. Reg. 64726; see
id., at 64738 (“[O]ur traditional
interpretation . . . has allowed regulated entities to
produce as much of a particular good as they desire provided that
they do so through an appropriately clean (or low-emitting)
process.”). And as Justice Frankfurter has noted, “just as
established practice may shed light on the extent of power conveyed
by general statutory language, so the want of assertion of power by
those who presumably would be alert to exercise it, is equally
significant in determining whether such power was actually
conferred.”
FTC v.
Bunte Brothers,
Inc.,
312 U.S.
349, 352 (1941).
The Government quibbles with this description of
the history of Section 111(d), pointing to one rule that it says
relied upon a cap-and-trade mechanism to reduce emissions. See 70
Fed. Reg. 28616 (2005) (Mercury Rule). The legality of that choice
was controversial at the time and was never addressed by a court.
See
New Jersey v.
EPA, 517 F.3d 574 (CADC 2008)
(vacating on other grounds). Even assuming the Rule was valid,
though, it still does not help the Government. In that regulation,
EPA set the actual “emission cap”—
i.e., the limit on
emissions that sources would be required to meet—“based on the
level of [mercury] emissions reductions that w[ould] be achievable
by” the use of “technologies [that could be] installed and
operational on a nationwide basis” in the relevant
timeframe—namely, wet scrubbers. 70 Fed. Reg. 28620–28621. In other
words, EPA set the cap based on the application of particular
controls, and regulated sources could have complied by installing
them. By contrast, and by design, there is no control a coal plant
operator can deploy to attain the emissions limits established by
the Clean Power Plan. See
supra, at 10. The Mercury Rule,
therefore, is no precedent for the Clean Power Plan. To the
contrary, it was one more entry in an unbroken list of prior
Section 111 rules that devised the enforceable emissions limit by
determining the best control mechanisms available for the
source.[
1]
This consistent understanding of “system[s] of
emission reduction” tracked the seemingly universal view, as stated
by EPA in its inaugural Section 111(d) rulemaking, that “Congress
intended a technology-based approach” to regulation in that
Section. 40 Fed. Reg. 53343 (1975); see
id., at 53341
(“degree of control to be reflected in EPA’s emission guidelines”
will be based on “application of best adequately demonstrated
control technology”).[
2] A
technology-based standard, recall, is one that focuses on improving
the emissions performance of individual sources. EPA “commonly
referred to” the “level of control” required as a “best
demonstrated technology (BDT)” standard, 73 Fed. Reg. 34073, and
consistently applied it as such.
E.g., 61 Fed. Reg. 9907
(declaring “BDT” to be “a well-designed and well-operated gas
collection system and . . . a control device capable of
reducing [harmful gases] in the collected gas by 98
weight-percent.”).
Indeed, EPA nodded to this history in the Clean
Power Plan itself, describing the sort of “systems of emission
reduction” it had always before selected—“efficiency improvements,
fuel-switching,” and “add-on controls”—as “more traditional air
pollution control measures.” 80 Fed. Reg. 64784. The Agency noted
that it had “considered” such measures as potential systems of
emission reduction for carbon dioxide,
ibid., including a
measure it ultimately adopted as a “component” of the BSER, namely,
heat rate improvements.
Id., at 64727.
But, the Agency explained, in order to
“control[ ] CO2 from affected [plants] at levels
. . . necessary to mitigate the dangers presented by
climate change,” it could not base the emissions limit on “measures
that improve efficiency at the power plants.”
Id., at 64728.
“The quantity of emissions reductions resulting from the
application of these measures” would have been “too small.”
Id., at 64727. Instead, to attain the necessary “critical
CO2 reductions,” EPA adopted what it called a “broader,
forward-thinking approach to the design” of Section 111
regulations.
Id., at 64703. Rather than focus on improving
the performance of individual sources, it would “improve the
overall power system by lowering the carbon intensity of
power generation.”
Ibid. (emphasis added). And it would do
that by forcing a shift throughout the power grid from one type of
energy source to another. In the words of the then-EPA
Administrator, the rule was “not about pollution control” so much
as it was “an investment opportunity” for States, especially
“investments in renewables and clean energy.” Oversight Hearing on
EPA’s Proposed Carbon Pollution Standards for Existing Power Plants
before the Senate Committee on Environment and Public Works, 113th
Cong., 2d Sess., p. 33 (2014).
This view of EPA’s authority was not only
unprecedented; it also effected a “fundamental revision of the
statute, changing it from [one sort of] scheme of . . .
regulation” into an entirely different kind.
MCI, 512
U. S., at 231. Under the Agency’s prior view of Section 111,
its role was limited to ensuring the efficient pollution
performance of each individual regulated source. Under that
paradigm, if a source was already operating at that level, there
was nothing more for EPA to do. Under its newly “discover[ed]”
authority,
Utility Air, 573 U. S., at 324, however, EPA
can demand much greater reductions in emissions based on a very
different kind of policy judgment: that it would be “best” if coal
made up a much smaller share of national electricity generation.
And on this view of EPA’s authority, it could go further, perhaps
forcing coal plants to “shift” away virtually all of their
generation—
i.e., to cease making power altogether.[
3]
The Government attempts to downplay the
magnitude of this “unprecedented power over American industry.”
Industrial Union Dept.,
AFL–CIO v.
American
Petroleum Institute,
448 U.S.
607, 645 (1980) (plurality opinion). The amount of generation
shifting ordered, it argues, must be “adequately demonstrated” and
“best” in light of the statutory factors of “cost,” “nonair quality
health and environmental impact,” and “energy requirements.” 42
U. S. C. §7411(a)(1). EPA therefore must limit the
magnitude of generation shift it demands to a level that will not
be “exorbitantly costly” or “threaten the reliability of the grid.”
Brief for Federal Respondents 42.
But this argument does not so much
limit
the breadth of the Government’s claimed authority as
reveal
it. On EPA’s view of Section 111(d), Congress implicitly tasked it,
and it alone, with balancing the many vital considerations of
national policy implicated in deciding how Americans will get their
energy. EPA decides, for instance, how much of a switch from coal
to natural gas is practically feasible by 2020, 2025, and 2030
before the grid collapses, and how high energy prices can go as a
result before they become unreasonably “exorbitant.”
There is little reason to think Congress
assigned such decisions to the Agency. For one thing, as EPA itself
admitted when requesting special funding, “Understand[ing] and
project[ing] system-wide . . . trends in areas such as
electricity transmission, distribution, and storage” requires
“technical and policy expertise
not traditionally needed in
EPA regulatory development.” EPA, Fiscal Year 2016: Justification
of Appropriation Estimates for the Committee on Appropriations 213
(2015) (emphasis added). “When [an] agency has no comparative
expertise” in making certain policy judgments, we have said,
“Congress presumably would not” task it with doing so.
Kisor
v.
Wilkie, 588 U. S. ___, ___ (2019) (slip op., at 17);
see also
Gonzales, 546 U. S., at 266–267.
We also find it “highly unlikely that Congress
would leave” to “agency discretion” the decision of how much coal-
based generation there should be over the coming decades.
MCI, 512 U. S., at 231; see also
Brown &
Williamson, 529 U. S., at 160 (“We are confident that
Congress could not have intended to delegate a decision of such
economic and political significance to an agency in so cryptic a
fashion.”). The basic and consequential tradeoffs involved in such
a choice are ones that Congress would likely have intended for
itself. See W. Eskridge, Interpreting Law: A Primer on How To Read
Statutes and the Constitution 288 (2016) (“Even if Congress has
delegated an agency general rulemaking or adjudicatory power,
judges presume that Congress does not delegate its authority to
settle or amend major social and economic policy decisions.”).
Congress certainly has not conferred a like authority upon EPA
anywhere else in the Clean Air Act. The last place one would expect
to find it is in the previously little-used backwater of Section
111(d).
The dissent contends that there is nothing
surprising about EPA dictating the optimal mix of energy sources
nationwide, since that sort of mandate will reduce air pollution
from power plants, which is EPA’s bread and butter.
Post, at
20–22. But that does not follow. Forbidding evictions may slow the
spread of disease, but the CDC’s ordering such a measure certainly
“raise[s] an eyebrow.”
Post, at 18. We would not expect the
Department of Homeland Security to make trade or foreign policy
even though doing so could decrease illegal immigration. And no one
would consider generation shifting a “tool” in OSHA’s “toolbox,”
post, at 21, even though reducing generation at coal plants
would reduce workplace illness and injury from coal dust.
The dissent also cites our decision in
American Elec. Power Co. v.
Connecticut,
564 U.S.
410 (2011).
Post, at 20. The question there, however,
was whether Congress wanted district court judges to decide, under
unwritten federal nuisance law, “whether and how to regulate
carbon- dioxide emissions from powerplants.” 564 U. S., at
426. We answered no, given the existence of Section 111(d). But we
said nothing about the ways in which Congress intended EPA to
exercise its power under that provision. And it is doubtful we had
in mind that it would claim the authority to require a large shift
from coal to natural gas, wind, and solar. After all, EPA had never
regulated in that manner, despite having issued many prior rules
governing power plants under Section 111. See,
e.g., 71 Fed.
Reg. 9866 (2006); 70 Fed. Reg. 28616; 44 Fed. Reg. 33580; 36 Fed.
Reg. 24875 (1973).[
4]
Finally, we cannot ignore that the regulatory
writ EPA newly uncovered conveniently enabled it to enact a program
that, long after the dangers posed by greenhouse gas emissions “had
become well known, Congress considered and rejected” multiple
times.
Brown & Williamson, 529 U. S., at 144; see
also
Alabama Assn., 594 U. S., at ___ (slip op., at 2);
Bunte Brothers, 312 U. S., at 352 (lack of authority
not previously exercised “reinforced by [agency’s] unsuccessful
attempt . . . to secure from Congress an express grant of
[the challenged] authority”). At bottom, the Clean Power Plan
essentially adopted a cap-and-trade scheme, or set of state
cap-and-trade schemes, for carbon. See 80 Fed. Reg. 64734
(“Emissions trading is . . . an integral part of our BSER
analysis.”). Congress, however, has consistently rejected proposals
to amend the Clean Air Act to create such a program. See,
e.g., American Clean Energy and Security Act of 2009,
H. R. 2454, 111th Cong., 1st Sess.; Clean Energy Jobs and
American Power Act, S. 1733, 111th Cong., 1st Sess. (2009). It has
also declined to enact similar measures, such as a carbon tax. See,
e.g., Climate Protection Act of 2013, S. 332, 113th Cong.,
1st Sess.; Save our Climate Act of 2011, H. R. 3242, 112th
Cong., 1st Sess. “The importance of the issue,” along with the fact
that the same basic scheme EPA adopted “has been the subject of an
earnest and profound debate across the country, . . .
makes the oblique form of the claimed delegation all the more
suspect.”
Gonzales, 546 U. S., at 267–268 (internal
quotation marks omitted).
C
Given these circumstances, our precedent
counsels skepticism toward EPA’s claim that Section 111 empowers it
to devise carbon emissions caps based on a generation shifting
approach. To overcome that skepticism, the Government must—under
the major questions doctrine—point to “clear congressional
authorization” to regulate in that manner.
Utility Air, 573
U. S., at 324.
All the Government can offer, however, is the
Agency’s authority to establish emissions caps at a level
reflecting “the application of the best system of emission
reduction . . . adequately demonstrated.” 42
U. S. C. §7411(a)(1). As a matter of “definitional
possibilities,”
FCC v.
AT&T Inc.,
562 U.S.
397, 407 (2011), generation shifting can be described as a
“system”—“an aggregation or assemblage of objects united by some
form of regular interaction,” Brief for Federal Respondents
31—capable of reducing emissions. But of course almost anything
could constitute such a “system”; shorn of all context, the word is
an empty vessel. Such a vague statutory grant is not close to the
sort of clear authorization required by our precedents.
The Government, echoed by the other respondents,
looks to other provisions of the Clean Air Act for support. It
points out that the Act elsewhere uses the word “system” or
“similar words” to describe cap-and-trade schemes or other
sector-wide mechanisms for reducing pollution.
Ibid. The
Acid Rain program set out in Title IV of the Act establishes a
cap-and-trade scheme for reducing sulfur dioxide emissions, which
the statute refers to as an “emission allocation and transfer
system.” §7651(b) (emphasis added). And Section 110 of the
NAAQS program specifies that “marketable permits” and “auctions of
emissions rights” qualify as “control measures, means, or
techniques” that States may adopt in their state implementation
plans in order “to meet the applicable requirements of ” a
NAAQS. §7410(a)(2)(A). If the word “system” or similar words like
“technique” or “means” can encompass cap-and-trade, the Government
maintains, why not in Section 111?
But just because a cap-and-trade “system” can be
used to reduce emissions does not mean that it is the kind of
“system of emission reduction” referred to in Section 111. Indeed,
the Government’s examples demonstrate why it is not.
First, unlike Section 111, the Acid Rain and
NAAQS programs contemplate trading systems as a means of
complying with an
already established emissions
limit, set either directly by Congress (as with Acid Rain, see
42 U. S. C. §7651c) or by reference to the safe
concentration of the pollutant in the ambient air (as with the
NAAQS). In Section 111, by contrast, it is EPA’s job to come up
with the cap itself: the “numerical limit on emissions” that States
must apply to each source. 80 Fed. Reg. 64768. We doubt that
Congress directed the Agency to set an emissions cap at the level
“which reflects the degree of emission limitation achievable
through the application of [a cap-and-trade] system,” §7411(a)(1),
for that degree is indeterminate. It is one thing for Congress to
authorize regulated sources to use trading to comply with a preset
cap, or a cap that must be based on some scientific, objective
criterion, such as the NAAQS. It is quite another to simply
authorize EPA to set the cap itself wherever the Agency sees
fit.
Second, Congress added the above authorizations
for the use of emissions trading programs in 1990, simultaneous
with amending Section 111 to its present form. At the time,
cap-and-trade was a novel and highly touted concept. The Acid Rain
program was “the nation’s first-ever emissions trading program.” L.
Heinzerling & R. Steinzor, A Perfect Storm: Mercury and the
Bush Administration, 34 Env. L. Rep. 10297, 10309 (2004). And
Congress went out of its way to amend the NAAQS statute to make
absolutely clear that the “measures, means, [and] techniques”
States could use to meet the NAAQS included cap-and-trade.
§7410(a)(2)(A). Yet “not a peep was heard from Congress about the
possibility that a trading regime could be installed under §111.”
Id., at 10309.
Finally, the Government notes that other parts
of the Clean Air Act, past and present, have “explicitly limited
the permissible components of a particular ‘system’ ” of emission
reduction in some regard. Brief for Federal Respondents 32. For
instance, a separate section of the statute empowers EPA to require
the “degree of reduction achievable through the
retrofit
application of the best system of
continuous emission
reduction.” §7651f(b)(2) (emphasis added). The comparatively
unadorned use of the phrase “best system of emission reduction” in
Section 111, the Government urges, “suggest[s] a conscious
congressional” choice
not to limit the measures that may
constitute the BSER to those applicable at or to an individual
source.
Id., at 32
.
These arguments, however, concern an
interpretive question that is not at issue. We have no occasion to
decide whether the statutory phrase “system of emission reduction”
refers
exclusively to measures that improve the pollution
performance of individual sources, such that all other actions are
ineligible to qualify as the BSER. To be sure, it is pertinent to
our analysis that EPA has acted consistent with such a limitation
for the first four decades of the statute’s existence. But the only
interpretive question before us, and the only one we answer, is
more narrow: whether the “best system of emission reduction”
identified by EPA in the Clean Power Plan was within the authority
granted to the Agency in Section 111(d) of the Clean Air Act. For
the reasons given, the answer is no.[
5]
* * *
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.”
New York v.
United States,
505 U.S.
144, 187 (1992). But it is not plausible that Congress gave EPA
the authority to adopt on its own such a regulatory scheme in
Section 111(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 judgment of the Court
of Appeals for the District of Columbia Circuit is reversed, and
the cases are remanded for further proceedings consistent with this
opinion.
It is so ordered.
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