After West Virginia v. EPA, What's Next?

摘要

On June 30,2022, the U.S. Supreme Court issued its decision in West Virginia v. EPA, which addressed the scope of the U.S. Environmental Protection Agency's (EPA's) authority to regulate greenhouse gas (GHG) emissions from existing electric generating units (EGUs) under section 111(d) of the Clean Air Act (CAA), as embodied in the never-implemented Clean Power Plan (CPP). In a surprise to many, the Supreme Court limited, but ultimately preserved, EPA's authority to regulate GHG emissions from EGUs. As electric companies and other stakeholders prepare for another round of rulemakings, both long-time participants and casual observers of the decade of regulatory back-and-forth on what EPA can and cannot do under the CAA would be forgiven for feeling like Yogi Berra: It's like deja vu all over again. Of course, this will be the third time that EPA has attempted such regulations, and some critical questions have been answered by the Supreme Court decision. In particular, the West Virginia decision identified a key limitation in how EPA can regulate these sources-any new standards cannot be based on shifting generation from higher-emitting to lower-emitting sources.