West Virginia’s challenge to Clean Air Act is more than about climate change, two state AGs say

West Virginia’s challenge to the Clean Air Act, a closely watched case in which the U.S. Supreme Court will hear oral arguments Feb. 28, is more than just about questioning climate change, the attorneys general of West Virginia and Indiana said at a National Press Club Newsmaker event Feb. 17.

The AGs, West Virginia’s Patrick Morrisey and Indiana’s Todd Rokita, both stressed that the case is more importantly about due process of law and extending unlimited authority to regulatory bodies such as the Environmental Protection Agency (EPA) at the exclusion of the responsibility of Congress to weigh in on the best interests and opinions of their constituents.   

The case is the result of a district court decision on Jan. 19, 2021, that granted what West Virginia maintains is excessively expansive authorities to federal agencies, most notably the EPA.

Morrisey said the case, which he called one of the most important the Supreme Court is considering, at its heart  is about “the administration of law and the separation of power.”

Further, he warned, should the EPA be permitted to run roughshod over Congress’ and voters’ interests, it could restructure the entire power grid of the United States and result in much higher electric costs for consumers.
 

“The case is about the fundamental question of who decides the major issues of the day—bureaucrats or the peoples’ representatives in Congress,” Morrissey said. “Federal agencies don’t have the ability to act solely on their own without getting a clear statement from Congress. Delegation matters for the purpose of ensuring that Congress is fulfilling its role under the constitution, and the states have the ability to enjoy their role in a cooperative federalism system, as well.

“We have never said that the EPA lacks any authority to address climate change,” Morrisey, a Republican, continued. “It is just that we have a much different definition of what is permissible under the Clean Air Act and the ‘major questions doctrine,’ as opposed to some of my colleagues on the other side.”

Rokita said it is imperative for Congress to write more specific laws so that EPA and other agencies are not given carte blanche to interpret them at will.

“The separation of powers and its capacity to prevent government by authoritarian degree is at the root of this discussion,” Rokita, also a Republican, said. “The founders insisted that lawmaking be done by lawmakers who are held accountable by the people, so that unauthorized power grabs much federal agencies are stopped.”

Morrissey said the outcome of the Supreme Court decision will have “profound effects across our nation, especially in West Virginia, which is heavily dependent on the types of fuels that would be impacted by the Biden administration and their proposals on the emission of greenhouse gases. West Virginia still relies on coal for 86% of its fuel sources. It still relies on natural gas and oil.”

If the EPA were to drastically reorder the use of energy, it would have profound political, economic and social consequences that would impact all Americans, Morrissey said. That is why, he said, that he Congressmen from other states, including Texas and California, believe this Supreme Court case is so important.

“The reordering of the power grid will have a profound effect on the price of energy, and that is deeply troubling,” he said. “All of that is important—but what really matters, of course, is that [we] make sure that Congress steps in and gets to make these major decisions of the day,” be it over the climate or vaccine mandates.

“When you have something with such political, economic and social consequence, it is the role of Congress to provide that clear statement,” he said.