The Obama administration’s biggest action to cut carbon emissions from the power sector will get its biggest test next Tuesday when the full en banc D.C. Circuit Court of Appeals hears West Virginia v. Environmental Protection Agency. The case will decide whether the EPA violated the law when it finalized its carbon rule — the Clean Power Plan — to regulate greenhouse gas emissions from the power sector under the Clean Air Act.
This is a significant case, and the D.C. Circuit took the somewhat unprecedented step of having the full court (that’s what en banc means) hear the case instead of the court’s normal three-judge panel — previously scheduled for a hearing last June. This signifies both how important the case is to the court, and that decisiveness could prove elusive in a 4–4 Supreme Court following the death of Antonin Scalia, leaving the D.C. Circuit as potentially the ultimate deciding body.
The case has taken a long and sometimes confusing path to get before the court, and the key components and actors have origins several decades prior to the plan’s eventual creation. Here is a timeline of the key events that brought the United States to this point.
December 2, 1970: Nixon creates the EPA
The Republican president established one federal agency to protect human health and the environment in an executive branch reorganization: the Environmental Protection Agency. Since then, it has been the main federal enforcer of environmental laws passed by Congress.
December 31, 1970: Nixon signs the Clean Air Act
President Nixon signed the bill into law, a landmark of the environmental movement, protecting public health and welfare from dangerous air pollutants. In the subsequent 46 years, the Act has helped drop emissions of six common pollutants 69 percent — while gross domestic product shot up 238 percent.
November 1988: IPCC created
The United Nations and the World Meteorological Organization create the Intergovernmental Panel on Climate Change (IPCC), “to prepare, based on available scientific information, assessments on all aspects of climate change and its impacts, with a view of formulating realistic response strategies.” Starting in 1990 and about every five years after that, the IPCC has issued Assessment Reports that look at what the world’s top experts understand about climate change.
November 14, 1990: Clean Air Act amendments passed
Congress passed important amendments strengthening the Clean Air Act, specifically asking the EPA to regulate other air pollutants that may not be identified in the legislation, as long as the agency found the pollutant threatened public health and welfare. President George H.W. Bush signed the act the day after Congress sent it to his desk. This will become important later. The amended Clean Air Act contains the legal basis for why the EPA is required to regulate greenhouse gas pollution.
June 12, 1992: Bush signs UNFCCC
After promising to use the “White House Effect” to battle the “greenhouse effect in the 1988 campaign, President George H.W. Bush signed the United Nations Framework Convention on Climate Change (UNFCCC) treaty four years later, which the Senate then ratified in October of the same year. This will also become important later. The treaty committed the United States, among other signers, to pursue emissions reductions — which 23 years later would manifest in the Paris Agreement.
April 2, 2007: Massachusetts v. EPA
In a 5–4 decision, a conservative court ruled in favor of Massachusetts and other states and environmental groups which had sued the George W. Bush EPA for not regulating greenhouse gases under the 1990 Clean Air Act. The court found that under the law, if the EPA reviewed the science and concluded that greenhouse gas pollutants threatened public health and welfare (an “endangerment finding” under the law), the agency was required the regulate them. This becomes very important.
December 7, 2009: EPA issues endangerment finding
After a lengthy and exhaustive look at the science, the EPA issued two findings as called for by the Supreme Court under the Clean Air Act. First, the agency found that greenhouse gases “threaten the public health and welfare of current and future generations.” Second, it found that combustion of fossil fuels contributed to that pollution. This provided the legal basis and imperative to act to regulate those gases.
May 21, 2010: CAFE standards for cars and trucks
President Obama directed the National Highway Traffic and Safety Administration and the EPA to establish GHG emissions standards under the Clean Air Act in an effort to reduce carbon pollution from cars and trucks. These Corporate Average Fuel Economy (CAFE) standards require vehicles to waste less fuel and in so doing cut tailpipe emissions across the national fleet. This was the first step in following the Court’s ruling that greenhouse gases counted as pollutants, and especially important as congressional efforts to pass cap-and-trade legislation addressing carbon pollution in the power sector sputtered in the Senate. The next step for comprehensive action on climate change would be up to the administration.
June 25, 2013: Obama announces Climate Action Plan
In a speech on a sweltering June day at Georgetown University, the president announced the first-ever comprehensive plan to address climate change. In addition to cutting domestic emissions (what would become the Clean Power Plan), the broader agenda included leading international efforts to cut global emissions, as well as preparing Americans for the costly impacts of climate change.
June 2, 2014: Clean Power Plan proposed
EPA Administrator Gina McCarthy issues a proposed rule to limit the amount of carbon pollution that can be dumped into the atmosphere from power plants: the Clean Power Plan. That draft rule aimed to cut national emissions 30 percent from 2005 levels by 2030 by giving states the flexibility to meet pollution reductions in the power sector.
August 3, 2015: Clean Power Plan finalized
After several years, hundreds of meetings, and 11 public listening sessions, President Obama announced the release of the final carbon rule, bringing the Clean Power Plan to regulatory life. Compared to the proposed rule, the new final version would cut more carbon pollution from the power sector, do it with more renewable energy and less natural gas, while providing more flexibility along the way to states trying to meet their targets. It was the most significant action any American president has ever taken to rein in climate change.
October 23, 2015: Clean Power Plan published in Federal Register
The EPA made the Clean Power Plan official, opening up a 90-day public comment period for the carbon rule and the proposed federal implementation plan.
October 23, 2015: EPA sued for Clean Power Plan
On the same day, West Virginia led a group of states that grew to total 27, along with fossil fuel utilities and coal companies, to sue the EPA in an effort to block the Clean Power Plan. Their main argument is that the EPA misinterpreted its authority to regulate pollutants under the Clean Air Act, in an apparent “war on coal.”
February 9, 2016: SCOTUS blocks the Clean Power Plan
An unexpected 5–4 ruling from the nation’s highest court stayed implementation of the Clean Power Plan until the West Virginia v. EPA gets resolved. This suspends federal action on the plan, though 19 states have continued to plan for the rules, and nine states are assessing whether they will plan for them.
April 1, 2016: Lawmakers file amicus brief in support of the CPP
Earlier this year, over 200 current and former members of Congress filed an amicus brief making the case that the EPA is required to regulate greenhouse gases. The same day, 54 local governments filed another amicus brief in support of the plan, after briefs filed by environmental groups and several large corporations also made the case for the Clean Power Plan.
September 27, 2016 : Oral arguments
The case West Virginia v. EPA will be argued en banc before a nine-judge panel at the U.S. District Court of Appeals for the District of Columbia.
This post has been edited for clarity and to correct a typo (the Paris Agreement was 23 years, not 13 years, after 1992).