On Thursday morning, the Supreme Court issued a 6–3 decision to limit the Environmental Protection Agency’s ability to regulate greenhouse gases from the power sector using a specific provision of the Clean Air Act. Capping power plant emissions, Chief Justice John G. Roberts Jr. wrote on behalf of the majority, is a decision that “rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” The Obama administration’s Clean Power Plan, the court ruled, went about it the wrong way, using powers Congress had not authorized for that purpose. Besides providing some good news for the coal industry, the court today welcomed all manner of challenges to the administrative state itself.
The ruling in West Virginia v. EPA comes both as hopes for federal climate legislation are on the rocks and as members of both parties have united behind a binge on new fossil fuel infrastructure whose greenhouse gas emissions could soon become much harder to regulate.
The decision is more constrained than the apocalyptic scenarios some thought possible, deciding on the “narrow” question of “whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act.” The court’s answer is no, but Roberts doesn’t call into question the EPA’s authority to regulate carbon dioxide in general or even to decide the best way to do that—even using other Clean Air Act provisions.
“It’s bad news,” said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School, before adding that “there is, relatively speaking, a silver lining here.… What’s important is that clearly the EPA still has the authority to regulate greenhouse gases,” including from power plants, if it uses a different approach.
More “troubling,” she says, is the challenges to the administrative state the majority opinion appears to invite. It explicitly questions agencies’ authority to deal with so-called “major questions”—i.e., to do big, new things—and signals an openness to taking on what Roberts calls “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”
“That’s a very ominous part of the opinion and could have a chilling effect on what agencies could do,” Freeman said. “There could be real trouble brewing across the administrative state.”
As Justice Elena Kagan notes in her dissent on behalf of the liberal minority, the “major questions doctrine” Roberts invokes is mostly made up. “The majority claims it is just following precedent, but that is not so,” she writes. “The Court has never even used the term ‘major questions doctrine’ before.” Kagan adds that the ruling sets the stage to hand more control over the interpretation of agencies’ congressionally proscribed mandates to the Supreme Court, which has appointed itself, she writes, “the decision-maker on climate policy. I cannot think of many things more frightening.”
It’s a one-two punch of minority rule: Gerrymandering and the undemocratic nature of the U.S. political system have helped to create an ever more radical Republican Party. Wyoming gets as many votes in the Senate as California, and some 94 percent of House districts could now be uncompetitive as a result of redistricting. In such a context, GOP lawmakers don’t side with Democrats on legislation because they don’t have to do so in order to keep their seats. Cutting against the party line that Democrats shouldn’t be allowed to govern is enough to earn you a primary challenger or a rebuke from leadership. Unfettered corporate donations help the country’s wealthiest voters shape policy in their own interest. This all helps make Congress bad at what is ostensibly its job: passing legislation.
Federal agencies have traditionally been a corrective to gridlock. But with the West Virginia ruling, the Supreme Court made clear its desire to kick the question of whether these agencies can continue to provide that corrective back to a historically dysfunctional legislative branch. “The court knows full well that Congress is very unproductive and isn’t going to be able to make granular decisions on a regular basis,” Freeman said of the push to give more control over agency rulemaking to the Supreme Court. “What really happens here is a massive transfer of power from the executive agencies to the courts. Courts will decide when statutes are too broadly worded. Courts will decide when Congress has handed off too much power.”
This ruling opens the floodgates to challenges to the administrative state itself. At issue is whether federal agencies—including independent ones like the Federal Reserve—are empowered to address new challenges with new tools, and without having gotten explicit permission to do so from Congress. On climate policy this could deal a blow to the “whole of government” approach that Biden pledged when he took office, wherein federal agencies were tasked with figuring out how they might contribute to reducing emissions. But any agency seen to be stepping outside of its lane—pursuing “major” versus “minor” questions—could risk a court challenge, with potentially massive implications for everything from workplace protections to food regulations. If cases make it to the court, it will be the conservative majority that gets to decide what the distinctions between major and minor are.
Among the first things to come under fire could be a hotly contested new rule proposed by the Securities and Exchange Commission requiring publicly listed companies to include emissions reporting in mandatory annual reports. It’s widely expected to be challenged in court, although Freeman doesn’t expect that the ruling will have much bearing on the ongoing comment period. The SEC “already knows it is in store for an argument that says they don’t have the authority to do it,” she told me, and accordingly has “tried very hard to link its rules proposal to its traditional authority to protect investors and get the information they need.” Similarly, the ruling doesn’t invalidate existing or in-development rules so much as place a “chill” around how far agencies are willing to go, Freeman said. Justice Neil Gorsuch’s concurring opinion was particularly welcoming of attempts to curtail federal agencies. In that he follows in the footsteps of his mother, who—as Ronald Reagan’s pick to lead the EPA—sought to shrink it as much as possible from the inside. “When an agency claims the power to regulate vast swathes of American life,” he writes, “it not only risks intruding on Congress’s power, it also risks intruding on powers reserved to states.”
The worst, in that sense, is likely yet to come. “This would be the beginning of a whole round of litigation in which industry and Republican-led attorneys general—those that want to challenge rules—get emboldened to challenge virtually everything that agencies do, arguing that it’s a major question,” Freeman said when we spoke before the ruling.
That this ruling has such broad implications is welcome news for the right-wing institutions that helped make it happen, including the Federalist Society. West Virginia v. EPA was filed against the Clean Power Plan, unveiled by the Obama administration in 2015 after Congress failed to pass climate legislation during his first term. It relied on Clean Air Act authorities to regulate carbon dioxide, bolstered by a 2007 Supreme Court ruling, Massachusetts v. EPA, which some feared the court might overturn in the West Virginia case. The Clean Power Plan would have required states to develop their own plans for reducing power plant carbon emissions, altogether aimed at adding up to a modest 32 percent reduction by 2030. States that didn’t draft their own plans would be entered into a carbon market.
Almost immediately, West Virginia and 18 other states brought their case. Attorneys general leading the charge were active with the Republican Attorneys General Association, which boasts funding from the likes of the American Petroleum Institute, Exxon, Chevron, the American Chemistry Council, and the American Gas Association, among many other fossil fuel interests. The Supreme Court issued a stay that kept the rule from being implemented. Arguments over it in the D.C. Circuit were dropped shortly after the election of Donald Trump, who promised (and delivered) an EPA that would try to give power plant operators carte blanche to pour whatever they wanted into the sky. The Trump administration issued a replacement measure (the “Affordable Clean Energy Rule”) that agreed with the basis of the states’ suit and was struck down by the D.C. Circuit for failing to account for impacts of pollution that the states in West Virginia v. EPA argued were beyond the agency’s jurisdiction to control. Bizarrely, then, the case has proceeded against a regulation that does not exist.
The West Virginia v. EPA ruling could have been far, far worse, albeit in the same way that a Category 3 hurricane causing tens of thousands of dollars of damages to your home is preferable to a Category 5 storm leveling the whole neighborhood. The EPA can still regulate greenhouse gas emissions from power plants, and Congress—moving forward—can do a lot to limit the court’s ability to weigh in on any new laws that pass, though the prospects for it doing so now look slim without filibuster reform. There’s also been momentum to try regulating greenhouse gases under the Toxic Substances Control Act, a 1976 law giving the agency the ability to restrict pollutants that carry “an unreasonable risk of injury to health or the environment.” What the drumbeat of Supreme Court decisions this term shows, though, is that court’s right-wing majority is comprised of garden-variety reactionaries with fancy law degrees and unlimited job security, who have no qualms openly using the court as an instrument for policymaking. And there’s very little that can stop them from going after whatever workarounds advocates might devise.