The same 6-3 conservative majority that struck down Roe v. Wade ended its destructive term Thursday by sharply constraining the Environmental Protection Administration’s ability to regulate greenhouse gases under the Clean Air Act. In the Dobbs v. Jackson Women’s Health Organization decision on abortion, Chief Justice John Roberts quibbled with the scope of the Court’s demolition of precedents. But in West Virginia v. EPA, Roberts wrote the majority opinion, stopping the EPA from adjusting its regulatory regime without a new, explicit grant of authority from Congress. It’s a crippling blow to the fight against climate change at a time when the Senate filibuster keeps Congress from acting; it also has troubling implications for the power of federal agencies generally to perform tasks assigned by lawmakers.
The basis of the decision is the “major questions doctrine,” which Court conservatives recently used to strike down COVID-related regulations on housing evictions and workplace safety. As the Congressional Research Service explained, the doctrine rejects federal agencies’ claims of regulatory authority “when (1) the underlying claim of authority concerns an issue of ‘vast “economic and political significance,”’ and (2) Congress has not clearly empowered the agency with authority over the issue.”
On occasion, courts have treated the major-questions doctrine as an exception to the general rule that courts defer to agencies’ interpretations of their own authority (so-called Chevron deference); but more recently, as in this case, it’s a freestanding objection to the subject matters on which agencies can rule expansively. Because the Obama-era Clean Power Plan shifted the EPA’s Clean Air Act strategy from the imposition of better technology on coal-fired power plants to “generation shifting” requirements mandating cleaner sources, Roberts says, it outstripped its original authority.
Part of what makes the decision an example of conservative judicial activism is its timing: The Trump administration replaced the Clean Power Plan with its own (weaker) regime for utility emissions, which in turn was revoked by the Biden administration. But the Biden administration did not reimpose the Obama regulations; it simply announced it would soon develop a new enforcement scheme. As Justice Elena Kagan notes in a dissent joined by Justices Sonia Sotomayor and Stephen Breyer (on his last day on the Court), the conservatives were very eager to leap into these unsettled waters:
The Court’s docket is discretionary, and because no one is now subject to the Clean Power Plan’s terms, there was no reason to reach out to decide this case. The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. That new rule will be subject anyway to immediate, pre-enforcement judicial review. But this Court could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change.
Roberts’s underlying claim is that generation shifting is too novel and too momentous to have been within Congress’s original intent. Kagan dismisses that position entirely:
The parties do not dispute that generation shifting is indeed the “best system” — the most effective and efficient way to reduce power plants’ carbon dioxide emissions. And no other provision in the Clean Air Act suggests that Congress meant to foreclose EPA from selecting that system; to the contrary, the Plan’s regulatory approach fits hand-in-glove with the rest of the statute.
So while the Court’s conservatives claim the EPA is engaged in a power grab in its power-plant regulations, it’s arguably the conservatives themselves seizing power from the congressional authors of the Clean Air Act.
In any event, the implications of West Virginia v. EPA are hard to overstate. The New York Times’ Adam Liptak quotes one authority’s warning:
Richard Lazarus, a law professor at Harvard, said that “the court’s ruling is a major setback for E.P.A.’s ability to address climate change, and it could hardly have come at a worse time.”
“By insisting instead that an agency can promulgate an important and significant climate rule only by showing ‘clear congressional authorization’ at a time when the court knows that Congress is effectively dysfunctional,” he said, “the court threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all: climate change.”
Defenders of this decision will probably say the Founders didn’t know about climate change, so if it’s indeed an existential threat to human existence, that’s not their problem. Don’t hold your breath expecting that to change for future environmental cases so long as the Supreme Court maintains its current balance of power.
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