State of West Virginia v. Environmental Protection Agency, and related cases, U.S. Supreme Court Nos. 20-1530, 1531, 1778, 1780

NELF has filed a brief urging the Supreme Court once again to curb EPA’s administrative overreach. This consolidated appeal involves literally scores of states and businesses positioned as parties or amici on either side of an important Clean Air Act issue. The issue is whether Congress delegated to EPA the power to impose emission standards achievable only through economic “systems,” like cap-and-trade, that operate at the level of the grid, rather than through technological systems installed at the individual emission sites. In its 2015 Clean Power Plan, EPA laid claim to the former power. The Court of Appeals for the D.C. Circuit ruled that EPA has in fact always had that power, and the Supreme Court has taken the case to decide the question.

In its brief supporting the petitioners NELF analyzes the statute in question in its full context, criticizes the lower court for failing to do so, and shows that Congress intended only technological systems to be used. Tellingly, NELF observes, until 2015 EPA itself had always said so too. As NELF points out, EPA claimed the power only after Congress refused to grant it by legislation. NELF offers numerous examples of wording, both in statutes and in regulations, indicating that any “systems” adopted, as well as resulting emission standards, are to be applied to the individual emission sources, and not to the grid at large.


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