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Each month, One Green Planet tracks major legal developments that are improving (or, in some cases, threatening) the lives and well-being of animals. This month, we’re spotlighting a case about air quality.

The case, West Virginia v. Environmental Protection Agency (EPA), was recently argued before the United States Supreme Court. And in a Supreme Court term that’s filled with high stakes and politically charged issues—including the Covid-19 vaccine, mask, and test mandates, abortion rights, voting rights, and Indian sovereignty—this case may quietly involve the highest stakes of all.

1. Environmental Law, Air Quality, and Animals

In recent years, animal law has expanded as a discipline. Top law schools like Harvard have developed animal-law programs, and non-profits that protect animal interests have grown. These are, of course, significant positive developments, but it is important to remember that animal interests remain severely under-protected by the law and that environmental law still does a bulk of the heavy lifting to protect them.

Many environmental laws and cases directly pertain to Animal rights. For example, when environmentalists bring a lawsuit to stop Pollution into a river, they are fighting for all of the animals in that river.  But environmental cases that are less directly traceable to animal interests—like cases under the Clean Air Act—can be equally important for animals in the long term. Put simply, air Pollution leads to Global warming, and global warming is responsible for the demise of animal populations and even species.  According to the Center for Biological Diversity, “Global warming is projected to commit over one-third of the Earth’s animal and plant species to extinction by 2050.”  So major air quality cases are, for all intents and purposes, some of the most important cases for animals as well as humans.

2. West Virginia v. EPA—the Background

West Virginia v. EPA arrived at the Supreme Court in an unusual posture—and after years of atypical litigation.

Back in 2015, the Obama Administration’s EPA announced the Clean Power Plan. In short, the goal of the Clean Power Plan was to regulate carbon dioxide emissions from power plants, and several republican states, fossil fuel companies, and industry groups (among others) brought legal challenges to strike it down.

The heart of the challenge to the Clean Power Plan was that it went too far. According to challengers, the EPA has power under the Clean Air Act to regulate individual plants (what the industry calls “within the fence line” measures). But the Clean Power Plan promoted generation shifting—shifts from coal, to fossil fuels, to renewable energies. According to challengers, the Obama-era EPA exceeded its regulatory power by pushing these “outside the fenceline” measures. (More on this below.)

If this was 2015, whatever happened with the Clean Power Plan? The answer is… nothing. In early 2016, in a highly atypical move, the Supreme Court, mid-litigation, decided to “stay” the Clean Power Plan (i.e., stop the Rule from going into effect until the lower courts decided whether to uphold it). Justice Scalia, in one of the final votes of his career before he passed away, provided the decisive vote in a 5-4 decision.

Then Donald Trump was elected President.

Not too surprisingly, Trump’s EPA had different policies than Obama’s EPA. Trump’s EPA decided that the Clean Power Plan was unlawful and replaced it with a policy that loosened regulation. Of course, democratic states, public health organizations, and environmental groups challenged the Trump Rule. And in January 2021, the D.C. Circuit (the federal appellate court in Washington D.C.) found the Trump Rule to be unlawful, leaving the EPA to start from scratch. As a result, right now, there is no rule in effect.

3. Is West Virginia v. EPA an Unwelcome Crystal Ball?

Since there’s no rule in effect regulating carbon dioxide emissions from power plants, you might wonder.. why exactly is West Virginia suing the EPA in the Supreme Court of the United States? If you’re unsure, then you’re not alone.

Under Article III of the United States Constitution, courts only hear “cases and controversies.” In other words, courts don’t issue advisory opinions. For example, the president can’t ask the Supreme Court, “under our treaty with France, can France use our ports for its ships?” The question is hypothetical—just like, “how much authority does the EPA have to regulate carbon dioxide emissions from power plants?” But without regulation in place to challenge, that’s exactly what West Virginia is asking—it’s asking the Court to reign in the EPA’s power without a specific case.

Usually, conservative courts are eager to shut the door on procedurally improper challenges. In other articles here and here, I discussed how challenging it can be to bring environmental and animal-rights cases before courts because of a concept called standing. That’s why it will be so ironic (and so telling) if the Court reaches the merits in West Virginia v. EPA. If the Court is willing to narrow the EPA’s power, without even a proper case before it, then the Court will have shown a willingness to go to great lengths to curb environmental regulation. That will be a very important—and very bad—sign for the future of the planet.

4. Will West Virginia v. EPA Wreak Havoc on the Administrative State?

If the Court reaches the merits, there are two ways it could limit the scope of the EPA’s authority: the first way is horrible, and the second way is worse. The second (worse) way would severely limit the EPA’s power not only in this case but in all future cases. It would also curtail the power of other federal agencies, largely at the discretion of conservative courts.

How? And why?

As a practical matter, agencies run this country. Consider, for example, how the government regulates food and drug safety standards? That’s the FDA. How does the government oversee social security? That’s the SSA. And so on, for hundreds of federal agencies.

But where do agencies get their power to act? Since agencies are not expressly in the Constitution, Congress must delegate them power through statutes, which direct the agencies to act. The Clean Air Act, for example, is the statute that gives the EPA authority to regulate air Pollution.

In recent years, conservatives and liberals have battled over agency power. Practically, for conservatives, restricting agency power advances a deregulatory agenda.  Therefore, at an extreme, conservatives argue that Congress cannot delegate power to administrative agencies, and, effectively, that the entire administrative state is unlawful. This is known as the “non-delegation doctrine.” At a slightly less extreme, conservatives argue that Congress can delegate power to agencies, but only very limited power that Congress delegates explicitly. Therefore, statutes should not be interpreted in ways that allow agencies to issue rules about “major questions.” This is known as the “major questions doctrine.

In theory, the major questions doctrine can be employed sensibly—and Justice Kagan articulated this during the oral argument in West Virginia v. EPA. She proposed that assuming there is ambiguity in a statute, courts will find a “major question” if an agency is regulating outside of its “appropriate lane” in a way that would disrupt the statutory framework. Consider, for example, when the FDA decided to regulate tobacco—the Court told the FDA, “that’s not your job.” But the major questions doctrine will take on a dangerous life of its own if the Court decides that “major question” simply means “big, important question”—because courts can decide that anything is a “big, important question” and then strike down an agency rule about it.

With this in mind, we can turn back to the arguments in West Virginia v. EPA. The challengers make two arguments that, under the Clean Air Act, the EPA does not have the power to regulate “beyond the fenceline.” The first is a standard, textual argument. According to the challengers, the Justices should look at the language in the Clean Air Act and decide, based on that language, that Congress allows the EPA to regulate, but only “within the fenceline.” That would be a horrible outcome. But the second, and more dangerous, argument is that the EPA cannot regulate “beyond the fenceline” because doing so would give the EPA power over a “major question.” Regulating air Pollution is directly in the EPA’s “appropriate lane,”—so if the Court invokes the major questions doctrine to curb the EPA’s power, it will simultaneously turn the major questions doctrine into a dangerous weapon.

One Green Planet will keep you posted with updates as they come.


There are two pretty “major” ironies in this case. First, “beyond the fenceline” regulations are not necessarily any more major than “within the fenceline” regulations. Second, and relatedly, the majority of fossil fuel companies have taken a stance in this case… and they’ve sided with the EPA.

For previous Animal Law Updates on One Green Planet:

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