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In the historic decision of West Virginia v. EPA, the Supreme Court held that the Clean Air Act doesn’t authorize EPA to force America’s electricity sector to switch to renewable sources. The Court invalidated the Obama-era Clean Power Plan, which would have limited the total allowable greenhouse gas emissions of each state’s utility sector under the banner of “performance standards” for power plants. That was the regulatory strategy the EPA had pursued for cutting emissions from electricity generation. Consequently, the decision closes the window on the most viable regulatory route for sweeping climate action by federal agencies without a clear congressional mandate, while raising the bar still higher for options such as NAAQS for greenhouse gases.

The decision’s linchpin was the Court’s holding that the Obama Administration’s novel interpretation of a 50-year old statutory provision could not be used to support the broad new powers that EPA had claimed for itself in the Clean Power Plan. Under the court’s “major question doctrine,” Congress must speak clearly to delegate “decisions of vast economic and political significance” to an agency. Together with Justice Neil Gorsuch, who in concurrence further elaborated on his view of non-delegation, the majority opinion by Chief Justice John Roberts signaled that the Court is likely to reject major regulatory innovations by federal agencies that are not based on clear statutory authority.


  • Daniel FarberSho Sato Professor of Law and Faculty Director, Center for Law, Energy, and the Environment, University of California, Berkeley
  • Adam GustafsonSenior Counsel for Environmental and Regulatory Affairs, Boeing
  • Mario Loyola, Senior Fellow, Competitive Enterprise Institute
  • [Moderator] James Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.