WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.
Held:
This case remains justiciable notwithstanding the Government’s contention that no petitioner has Article III standing, given EPA’s stated intention not to enforce the Clean Power Plan and to instead engage in new rulemaking. In considering standing to appeal, the question is whether the appellant has experienced an injury “fairly traceable to the judgment below.” Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___. If so, and a “favorable ruling” from the appellate court “would redress [that] injury,” then the appellant has a cognizable Article III stake. Ibid. Here, the judgment below vacated the ACE rule and its embedded repeal of the Clean Power Plan, and accordingly purports to bring the Clean Power Plan back into legal effect. There is little question that the petitioner States are injured, since the rule requires them to more stringently regulate power plant emissions within their borders. The Government counters that EPA’s current posture has mooted the prior dispute. The distinction between mootness and standing matters, however, because the Government bears the burden to establish that a once-live case has become moot. The Government’s argument in this case boils down to its representation that EPA does not intend to enforce the Clean Power Plan prior to promulgating a new Section 111(d) rule. But “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 719. Here, the Government “nowhere suggests that if this litigation is resolved in its favor it will not” reimpose emissions limits predicated on generation shifting. Ibid. Pp. 14–16.
Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan. Pp. 16–31.
(a) In devising emissions limits for power plants, EPA “determines” the BSER that—taking into account cost, health, and other factors—it finds “has been adequately demonstrated,” and then quantifies “the degree of emission limitation achievable” if that best system were applied to the covered source. §7411(a)(1). The issue here is whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% to 27% coal by 2030, can be the BSER within the meaning of Section 111.
Precedent teaches that there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159–160. See, e.g., Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___; Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324; Gonzales v. Oregon, 546 U. S. 243, 267; National Federation of Independent Business v. OSHA, 595 U. S. ___, ___. Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims. Utility Air, 573 U. S., at 324. Pp. 16–20.
(b) This is a major questions case. EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself. Given these circumstances, there is every reason to “hesitate before concluding that Congress” meant to confer on EPA the authority it claims under Section 111(d). Brown & Williamson, 529 U. S., at 160.
Prior to 2015, EPA had always set Section 111 emissions limits based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly, see, e.g., 41 Fed. Reg. 48706—never by looking to a “system” that would reduce pollution simply by “shifting” polluting activity “from dirtier to cleaner sources.” 80 Fed. Reg. 64726. The Government quibbles with this history, pointing to the 2005 Mercury Rule as one Section 111 rule that it says relied upon a cap-and-trade mechanism to reduce emissions. See 70 Fed. Reg. 28616. But in that regulation, EPA set the emissions limit—the “cap”—based on the use of “technologies [that could be] installed and operational on a nationwide basis” in the relevant timeframe. Id., at 28620–28621. By contrast, and by design, there are no particular controls a coal plant operator can install and operate to attain the emissions limits established by the Clean Power Plan. Indeed, the Agency nodded to the novelty of its approach when it explained that it was pursuing a “broader, forward-thinking approach to the design” of Section 111 regulations that would “improve the overall power system,” rather than the emissions performance of individual sources, by forcing a shift throughout the power grid from one type of energy source to another. 80 Fed. Reg. 64703 (emphasis added). This view of EPA’s authority was not only unprecedented; it also effected a “fundamental revision of the statute, changing it from [one sort of] scheme of . . . regulation” into an entirely different kind. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231.
The Government attempts to downplay matters, noting that the Agency must limit the magnitude of generation shift it demands to a level that will not be “exorbitantly costly” or “threaten the reliability of the grid.” Brief for Federal Respondents 42. This argument does not limit the breadth of EPA’s claimed authority so much as reveal it: On EPA’s view of Section 111(d), Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in the basic regulation of how Americans get their energy. There is little reason to think Congress did so. EPA has admitted that issues of electricity transmission, distribution, and storage are not within its traditional expertise. And this Court doubts that “Congress . . . intended to delegate . . . decision[s] of such economic and political significance,” i.e., how much coal-based generation there should be over the coming decades, to any administrative agency. Brown & Williamson, 529 U. S., at 160. Nor can the Court ignore that the regulatory writ EPA newly uncovered in Section 111(d) conveniently enabled it to enact a program, namely, cap-and-trade for carbon, that Congress had already considered and rejected numerous times. The importance of the policy issue and ongoing debate over its merits “makes the oblique form of the claimed delegation all the more suspect.” Gonzales, 546 U. S., at 267–268. Pp. 20–28.
(c) Given that precedent counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach, the Government must point to “clear congressional authorization” to regulate in that manner. Utility Air, 573 U. S., at 324. The Government can offer only EPA’s authority to establish emissions caps at a level reflecting “the application of the best system of emission reduction . . . adequately demonstrated.” §7411(a)(1). The word “system” shorn of all context, however, is an empty vessel. Such a vague statutory grant is not close to the sort of clear authorization required. The Government points to other provisions of the Clean Air Act specifically the Acid Rain and National Ambient Air Quality Standards (NAAQS) programs—that use the word “system” or “similar words” to describe sector-wide mechanisms for reducing pollution. But just because a cap-and-trade “system” can be used to reduce emissions does not mean that it is the kind of “system of emission reduction” referred to in Section 111.
Finally, the Court has no occasion to decide whether the statutory phrase “system of emission reduction” refers exclusively to measures that improve the pollution performance of individual sources, such that all other actions are ineligible to qualify as the BSER. It is pertinent to the Court’s analysis that EPA has acted consistent with such a limitation for four decades. But the only question before the Court is more narrow: whether the “best system of emission reduction” identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act. For the reasons given, the answer is no. Pp. 28–31.
985 F. 3d 914, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined. KAGAN, J., filed a dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined.
Supreme Court rules that the EPA exceeded its authority in its rulemaking.
