West Virginia v. EPA 

Summary of holding 

Although petitioners challenged a rule not even yet proposed by the Biden Administration’s EPA, the Court held that the D.C. Circuit’s vacation of the ACE rule – and the mere threat of a different rule’s future implementation – constituted sufficient injury to provide petitioners with Article III standing.   

With the case thus adjudged justiciable, the Court found that § 111(d) of the CAA does not allow the EPA to devise emission caps via a generation-shifting rule, such as the CPP. In reaching this conclusion, the majority – authored by Chief Justice John Roberts, joined by the five other conservative Justices – relied on the so-called “major questions doctrine,” a recently developed theory which limits administrative agencies’ ability to issue sweeping regulations of “political and economic importance,” absent clear evidence of congressional authorization. They found that Congress did not clearly confer authority on the EPA to regulate how electricity is generated in the U.S. under the CAA (going as far as to refer to § 111(d) as a “little-used backwater”). Therefore, any cap-and-trade system – or similarly ambitious generation-shifting scheme – from the EPA is impermissible without further legislation.  

In dissent, Justice Kagan, joined by her two liberal colleagues, argued that § 111(d) does in fact grant the EPA broad authority to regulate sources of air pollution, such as power plants, and to determine the “best system” to limit such emissions. The ruling, Kagan lamented, strips the EPA of its mandate and, in doing so, severely curtails the federal government’s ability to respond to climate change. 

---

Potential takeaways for future climate migration litigation 

• This landmark ruling from an arch-conservative Supreme Court will severely limit the U.S.’ ability to meet its decarbonization commitments under the Paris Agreement, save for a sea change in the politics and polarization of Congress. As one of the leading historical and current emitters of carbon pollution, much of the world looks to the U.S. for credible leadership on the climate crisis. Without it, we are more likely to see the worst predictions for the climate crisis – including mass forced displacement within and across national borders – come to pass.

• In keeping with its previous climate rulings, the Court did not dispute the reality of climate science, even as it ruled against the recommendations of most climate scientists. Notably, this case marks the first time “mass migration” caused by climate change was referenced in a Supreme Court decision, albeit in Justice Kagan’s dissent.  

• This case also heralds the entrenchment of the “major questions doctrine” in U.S. administrative law jurisprudence, which will have ramifications far beyond the climate context. It may mean, for instance, that even agencies which are sympathetic to the plight of climate migrants will be hamstrung in their ability to extend asylum protections without clear congressional authorization.