Regulating CO2 Emissions Post-West Virginia v. Environmental Protection Agency

In West Virginia v. Environmental Protection Agency, the Supreme Court expressly adopted the major questions doctrine and used it to invalidate the Clean Power Plan, a rule intended to reduce carbon dioxide emissions from power plants. This opinion has been controversial and has left many commentators concerned that it may hamper the ability of administrative agencies to aggressively and flexibly regulate.

This Article analyzes this opinion and the impact it may have on ongoing efforts to regulate carbon dioxide emissions at the federal level. This Article examines economic theory underpinning environmental regulation, developing technologies to reduce carbon dioxide emissions, and how they can be applied under the Clean Air Act. While the major questions doctrine may limit the Environmental Protection Agency’s regulatory flexibility, we argue that existing technological options do exist that allow for aggressive federal carbon dioxide emissions guidelines within the limits of the Supreme Court’s ruling in West Virginia v Environmental Protection Agency.