2020 Environmental Real Estate Issues

The US Supreme Court’s decision declaring EPA lacked the power to promulgate the Clean Power Plan (CPP) issued during the Obama administration demonstrates the resistance to rapid change in the structure of the federal government.

In West Virginia v. EPA, issued June 30, 2022, the Court invoked the “major questions doctrine.” The Court determined EPA lacked authority to issue a plan with a goal of forcing a transition in generating electricity away from coal because Congress did not clearly grant EPA this authority.

Hard to Make Major Regulatory Changes
The CPP’s history itself shows the resistance to rapid change. Despite the Obama administration’s stated commitment to reducing greenhouse gas emissions, it promulgated the CPP in 2015, the seventh year of its eight-year administration. Moreover, the US Supreme Court ordered a stay of the CPP within months of its issuance. For all practical purposes, the CPP has never been in effect.

In 2019, the third year of the four-year Trump administration, EPA repealed the CPP and replaced it with the Affordable Clean Energy (ACE) Rule. In early 2021, a federal appeals court ruled that EPA was wrong in replacing the CPP with the ACE Rule. By this time, Biden was elected. His administration announced it would develop yet another regulatory approach and not enforce the CPP.

CPP Not Authorized
The US Supreme Court determined the Biden administration’s announcement that it would not enforce the CPP was not enough to eliminate the controversy, and the Court ruled EPA lacked authority to issue the CPP.

To see the decision, including a concurring and a dissenting opinion https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf