West Virginia AG Hopes Supreme Court Will Curb EPA Authority

Patrick Morrisey seeks to prevent EPA from becoming a 'central energy planning authority'
By Matthew Vadum
Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
February 24, 2022Updated: February 27, 2022

West Virginia Attorney General Patrick Morrisey told The Epoch Times that he hopes the Supreme Court will use an upcoming case to rein in the far-reaching powers of the U.S. Environmental Protection Agency (EPA) to shut down carbon dioxide-generating industries without regard to the economic well-being of those affected.

The problem is that the EPA is trying to transform itself from “an environmental regulator into a central energy planning authority,” according to Morrisey, a Republican.

He was referring to the case known as West Virginia v. EPA, court file 20-1530, which the Supreme Court will hear on Feb. 28.

West Virginia is a major producer of coal, natural gas, and crude oil. According to the U.S. Energy Information Administration, West Virginia was fifth among U.S. states in energy production in 2019, accounting for 5 percent of the nation’s total. In 2020, it was the second-largest coal producer in the country, after Wyoming, accounting for 13 percent of total U.S. coal production.

West Virginia and 18 other states are challenging the authority that the Clean Air Act provides the EPA. The challengers hope the high court will resolve whether the U.S. Constitution gives Congress the power to delegate regulatory authority to the EPA to limit so-called greenhouse gas emissions.

The challenge comes years after the Supreme Court ruled 5–4 in Massachusetts v. EPA (2007) that the agency can regulate greenhouse gas emissions such as carbon dioxide as “air pollutants” under the act. In the decision, the court called climate change “the most pressing environmental challenge of our time.”

Critics have long said the classification of carbon dioxide, the gas humans expel from their lungs when breathing, as a pollutant is absurd. Carbon dioxide is essential to life on the planet and is used in the process of photosynthesis, which spurs plant growth. But environmentalists claim human-created carbon dioxide contributes to climate change.

In 2016, the Supreme Court halted the Obama-era Clean Power Plan, which expanded controls over industry, then later, the deregulation-minded Trump administration’s Affordable Clean Energy Rule (ACE Rule) eased controls on industry.

But a Jan. 19, 2021, ruling (pdf) by the U.S. Court of Appeals for the District of Columbia Circuit in American Lung Association v. EPA restored some of the agency’s authority. A three-judge panel found that the ACE Rule was unlawful.

Environmental Defense Fund senior attorney Ben Levitan hailed the ruling at the time.

“It’s a really strong foundation for the Biden–Harris EPA to restore crucial safeguards for Americans,” Levitan told Bloomberg Law.

Morrisey told The Epoch Times that after the Trump years of deregulation, the Biden administration is now “moving us in the opposite direction.”

“We want to make sure that on so many issues, that we’re able to take advantage of the abundant resources that our country possesses and utilize those resources responsibly. That’s what our goal is here in West Virginia,” he said. “And we’re hopeful that the cases that we’re advancing will allow our nation to retain that national security, that energy independence, that affordable pricing that is so critical to jobs and our economic future.”

Morrisey said is hoping for the Supreme Court case “to provide clarity once and for all, to the EPA about the nature of their authority—what exactly are they allowed to regulate? How can they regulate?”

“This has been going back and forth for many years,” he said. “We don’t need to have another four-year ping pong on this. We need to bring certainty and clarity.”

Morrisey said his state’s court case isn’t “directly engaging Massachusetts v. EPA.” The case is only “ostensibly” about climate change.

“There is always going to be room for debate on important questions,” he said. “And we’ve not made this about the science or the back-and-forth about climate change, because that’s a debate for Congress to have.

“We believe that there is a narrow array of authority that’s provided to the EPA in the area of carbon emissions.”

But the agency is trying to “take that narrow authority and extrapolate it and try to transform the EPA from being an environmental regulator into a central energy planning authority,” according to Morrisey.

“And it is something that that has to be stopped because the D.C. Circuit Court of Appeals gave the EPA virtually unlimited authority to act, a virtual mandate to go much further than what the statute allows,” he said.

Morrisey said the case is “so important because it gets to the fundamental question as to who gets to decide the major questions of the day in our society.”

“Should major issues of the day be decided by Congress, or by an unelected bureaucracy that has no accountability to the American public?” he said. “If you have a very significant financial, political, or social question, it’s important to get the input and the involvement of everyone who is part of our constitutional system.

“It’s a very important separation-of-powers question. We have to ensure that these bureaucrats don’t get to make the major questions of the day without the constitutionally mandated involvement of the American people and their representatives.”

The doctrine from constitutional law is actually called the Major Questions Doctrine, according to Morrisey.

“When there is a matter of vast economic and political significance, a major question of the day, Congress needs to provide a clear statement to the federal agency before it can act on that major question,” the doctrine states.

Despite a narrow grant of authority to the EPA, “we know through the Obama Clean Power Plan, and from the Biden administration’s own agenda, that they want to run very far afield from the statutory authority they possess.”

The state’s solicitor general, Lindsay See, who will argue the case before the high court, is “really wonderful,” according to Morrisey.

“We’ve been working very closely over the last few months on this issue, and she’s been working on this issue the last five years, so I have great confidence in her,” he said. “And this is a really important case for the future of our country.”