West Virginia v. EPA And The Future Of Tech Regulation

This term, in West Virginia v. EPA, the U.S. Supreme Court held that the U.S. Environmental Protection Agency (EPA) could not compel a nationwide shift away from coal-powered electricity generation.¹ The Court reasoned that it would not presume that Congress delegated a decision of "such magnitude and consequence" to the EPA absent a clear statement.² This decision – and its invocation of the major questions doctrine – portends that regulations governing broadband, as well as new and emerging technologies, may now be more vulnerable to legal challenges.

The Supreme Court's Decision

West Virginia v. EPA is a case about the EPA's regulatory authority under Section 111 of the Clean Air Act.³ That provision permits the EPA to set "standards of performance" for new power plants.⁴ It also contains an ancillary clause that requires the EPA to set "standards of performance" for existing power plants – but only where those plants emit pollutants not already regulated