Much has been said about the U.S. Supreme Court's decision in West Virginia v. EPA, 142 S.Ct. 2587 (2022), since it came out earlier this year. In overly simple terms, this case was the effective tie-breaker in a years-long battle between the Obama and Trump administrations' respective plans for reducing greenhouse gas (GHG) emissions from electric generating facilities. Obama's Clean Power Plan (CPP) sought to reduce GHG emissions by requiring actions not only at affected facilities but also more broadly across the power sector, by forcing a generation shift away from coal-fired plants. The latter category of reductions are commonly referred to as "beyond the fence line." Trump's Affordable Clean Energy (ACE) rule, by comparison, would have stopped short of requiring any emission reductions that could not be achieved at the facility level.

Both regulations got held up in litigation and, remarkably, neither one ever took effect. Biden's EPA also stated that it had no plans to revive the CPP. Some were surprised, therefore, that the court agreed to hear West Virginia at all, with Justice Elena Kagan herself observing in her dissent that the court's "docket is discretionary, and because no one is now subject to the [CPP's] terms, there was no reason to reach out to decide this case." Even more surprising, however, was the legal theory the court relied upon in reaching its decision: that is, the major questions doctrine. Surely, legal scholars and practitioners will be unpacking West Virginia for years, parsing it for what it tells us (or does not tell us) about when and how to invoke the major questions doctrine, and more specifically, how the decision bears upon long-held tenants of administrative law like Chevron deference, among others. But in the nearer term, those involved in the practice of environmental law may be trying to wrap their heads around how West Virginia will affect the EPA's ability to do its job, and in turn, what that could mean for regulated industries.