An Unintended Positive Amidst the Supreme Court's Deregulation of the Environmental Protection Agency

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Has deregulation of the environmental sector left a secret weapon that environmental activists can use to combat corporate pollution and carbon emissions? You might find this question far-fetched, as since the Supreme Court gained a 6-3 conservative majority in 2020, it cut back on numerous previously established regulatory and legal protections. However, amidst this environmental deregulation, state courts began reaffirming the rights of individuals to seek relief for climate damage, meaning there may now be an opportunity to reinstate federal standing for individuals, non-profits, and states to sue major carbon dioxide producing corporations.

To understand how the Supreme Court has rolled back regulation, I believe one should look at two key cases. First, in 2022, West Virginia v. EPA stripped the Environmental Protection Agency (EPA) of its authority to devise emission caps for Greenhouse gases under the Clean Air Act (John Roberts, 2022). As a result, the EPA was unable to shift electricity production from higher- to lower-emitting producers (Shay Dvoretzky et al, 2022). In layman’s terms, this placed less responsibility on corporations to shift the industry toward cleaner production and lower emissions. Corporations would only face EPA regulation in individual power plants, rather than across the entire sector. 

The second deregulation case worth noting is the 2023 Supreme Court case Sackett v. EPA. The court’s ruling limited what wetlands and other bodies of water could be protected against pollution under the Clean Water Act, as only those with a "continuous surface connection” to “traditional, interstate navigable waters.” The ruling weakened former protections established by the Clean Water Act and enabled large corporations to engage in reckless and harmful practices (Samuel Alito, 2022). This infringement upon the EPA’s authority under both the Clean Air and Clean Water Acts blatantly prioritized corporate profits over the welfare of the American people. With much fewer constraints from the federal government, corporate industries were able to release more toxic chemicals and hazardous pollutants into our water and airways.

Future presidential administrations, when looking to implement environmental protections to address climate change and pollution, will ultimately be constrained. However, hidden among this deregulation is a growing sliver of optimism, and a potentially new weapon to fight back against deregulation. Using precedent from a state court decision, there is an opportunity to give some power back to the American people, environmental organizations, and state governments in pursuing damages against polluters and greenhouse gas (GHG) emitters.

To understand this slightly rusty, but still usable tool, our story begins with the lesser-known 2011 case American Electric Power Co. v. Connecticut. Connecticut, eight other states, the city of New York, and various non-profit land trusts sued five major carbon-emitting corporations under federal common law public nuisance claims. In an 8-0 decision, authored by the late Ruth Bader Ginsburg, the court determined that the plaintiffs lacked standing to sue the defendants because federal common law had been displaced by the Clean Air Act. If you haven’t heard of this term before, common law is the principle that one can sue for damages, as a court remedy, for actions that violate rights expressly granted by a constitution or other legally binding document or statute (Robert V. Percivial et al, 2021). Ginsburg’s logic for declaring that there was a lack of federal standing to sue corporations was that the Clean Air Act delegated performance standards to ensure the reduction of carbon dioxide emissions, meaning that federal common law protections for the issues were unnecessary (Ruth Bader Ginsburg, 2011). This meant that individuals, non-profits, and states in the United States could not pursue federal lawsuits against major carbon emitters. 

Today, we have an EPA entirely inconsistent with Ginsburg’s time. The EPA has not only lost the express authority to target greenhouse gases, but seems to be intent on pursuing deregulation (EPA Press Office, 2025). It seems pretty clear to me that the strong EPA, bent on pursuing regulation, that shaped the reasoning of Ginsburg to deny federal standing under common law, is no longer present today.

In line with these changes to the EPA, we are seeing shifts in court trends at the state level. The 2023 case, Held v Montana saw a group of 16 Montana youths, represented by the non-profit public interest law firm, Our Children’s Trust, sue the state for its inaction in addressing climate change. The Supreme Court of Montana held that the plaintiffs’ constitutional rights to a clean and healthful environment had been violated by a provision of the Montana Environmental Policy Act (MEPA) that worsened the effects of climate change by preventing state agencies from considering potential climate impacts of fossil fuel projects (Mike McGrath, 2024). In turn, relief was immediately granted to the plaintiffs, as the MEPA provision that violated their constitutional rights was invalidated. This may indeed be sufficient precedent to challenge and overturn American Electric. 

Of course, I have to acknowledge that at the federal level, court cases involving common law and climate change redressability have yet to achieve desired results. Juliana v. United States was a similar case to Held, involving youth activists who claimed that the federal government's inaction towards climate change violated their due process rights. However, in 2020, a federal district court determined that the plaintiffs lacked the constitutional standing to sue the federal government (Andrew Hurwitz, 2020). While earlier this year, the Supreme Court declined to hear an appeal to this case, confirming the district court’s initial decision, in a scenario where the precedent of the Held decision of immediate relief is logically extended to the federal level, and where American Electric is overturned due to the change in the EPA’s context, people, states, and environmental organizations would now have express authority to hold corporations accountable for pollution through civil action. 

Further, it is important that I discuss the weaknesses of the common law that led Congress to establish the Clean Water Act and the Clean Air Act in the first place. After all, this weapon of environmental accountability places the burden on the individual, the organization, or the state to file a claim against the polluter, rather than the polluter being actively charged for violations, as is the case under the CAA and CWA. Further, imposing accountability onto these entities would be placed into the hands of a third-party judge who might bring potential biases in overseeing claims, taking action against deceitful corporate practices. 

Still, in a world featuring a weaker EPA with less power to regulate pollution and GHG emissions, especially at a time when addressing these issues on our planet is critical, a return of redressability to the individual or group in federal common law is at least one potential byproduct of a deregulated EPA that U.S. environmental advocates may be able to take solace in, in this period of uncertainty. While I welcome this prospect overall, I predict that this shift alone will not be sufficient to combat the widespread problems that global climate change and pollution pose due to the infeasibility of holding all major carbon emitters accountable.

Bibliography

—American Electric Power Company v. Connecticut, 564 U.S. 410 (2011).

—“EPA Launches Biggest Deregulatory Action in U.S. History.” EPA. Accessed November 13, 2025. https://www.epa.gov/newsreleases/epa-launches-biggest-deregulatory-action-us-history.

—Dvoretzky, Shay. Kennedy, Emily J., and Malone, Liz. “West Virginia v. EPA: Implications for Climate Change and Beyond: Insights: Skadden, Arps, Slate, Meagher & Flom LLP.” Insights | Skadden, Arps, Slate, Meagher & Flom LLP. Accessed November 19, 2025. https://www.skadden.com/insights/publications/2022/09/quarterly-insights/west-virginia-v-epa.  

—Held v. Montana, No. CDV-2020-307 (Mont. 1st Dist. Ct.) (14 Aug. 2023).

—Juliana v. United States, No. 18-36082 (9th Cir. 2020).—

—Percival, Robert V., Schroeder, Christopher H., Miller, Alan S., and Leape, James P.. 2021. 

—Environmental Regulation : Law, Science, and Policy. New York: Aspen Publishing. Accessed November 14, 2025. ProQuest Ebook Central.

—Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023).

—Sherman, Mark. “Supreme Court Rejects Call to Overturn Its Decision Legalizing Same-Sex Marriage Nationwide.” AP News, November 10, 2025. https://apnews.com/article/supreme-court-same-sex-marriage-50eb4ad421911696e742d8c4fb4962fd.

—West Virginia v. EPA, 597 U.S 697 (2022).