On Monday, February 28, the Supreme Court will hear oral argument in West Virginia v. Environmental Protection Agency, a challenge to the scope of the EPA's authority to regulate greenhouse gas emissions from power plants. As I discussed in a prior post, the Solicitor General and some of the respondents argue that the Court lacks jurisdiction to hear the case because the petitioners lack standing to challenge the D.C. Circuit's decision. As there is no regulation in place that the EPA is seeking to enforce, they argue, the petitioners do not suffer any injury that a favorable Court decision would redress.
Now that the petitioners have filed their reply briefs (available here), I thought it was worth revisiting the issue.
The D.C. Circuit's decision invalidated the Trump Administration's promulgation of the Affordable Clean Energy rule and its repeal of the Clean Power Plan. Accordingly, all plaintiffs need to be able to show to establish standing is that the reimposition of the CPP would cause them an injury. While much of the nation has achieved the CPP's emission reduction targets, this is not true for every state, which is enough to show that some would be injured by reimposition of the CPP, and that should be enough to sustain the petitioners' standing.
