COURT LIMITS EPA’S ABILITY TO RESTRICT EMISSIONS
Justices say agency doesn’t have power to regulate industry
The Supreme Court on Thursday limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, making it much tougher for President Joe Biden to achieve his goal of cutting greenhouse gas emissions in half by the end of the decade.
The vote was 6-3, with the court’s three liberal justices in dissent, saying the majority had stripped the EPA of “the power to respond to the most pressing environmental challenge of our time.”
In ruling against the EPA, the Supreme Court again waded into a politically divisive issue on the final day of a blockbuster term, adding to the conservative supermajority’s decisions to eliminate the constitutional right to abortion, vastly expand gun rights, and further erode the wall separating church and state.
The implications of the ruling could extend well beyond environmental policy. It also signals that the court’s newly expanded conservative majority is deeply skeptical of the power of administrative agencies to address major issues facing the nation and the planet.
The decision set off criticism from the left, but voices from the coal industry and conservative states praised the ruling.
The decision left Biden with far fewer tools to fight climate change, and he said the ruling was “another devastating decision that aims to take our country backwards.” He vowed to take action even as the court limited his ability to act, adding: “We cannot and will not ignore the danger to public health and existential threat the climate crisis poses.”
Patrick Morrisey, attorney general of West Virginia and one of the leaders of the challenge to the EPA’s authority, welcomed the decision.
“EPA can no longer sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation,” he said.
Writing for the majority, Chief Justice John Roberts only glancingly alluded to the harms caused by climate change. Justice Elena Kagan began her dissent with a long passage detailing the devastation the planet faces, including hurricanes, floods, famines, coastal erosion, mass migration and political crises.
The question in the case, Roberts wrote, turned on the scope of the language of the Clean Air Act. Under it, he wrote, Congress had not clearly given the agency sweeping authority to regulate the energy industry.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” he wrote, quoting an earlier decision. But, he added, “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
In dissent, Kagan wrote that the court had substituted its own policy judgment for that of Congress.
“Whatever else this court may know about, it does not have a clue about how to address climate change,” she wrote. “And let’s say the obvious: The stakes here are high. Yet the court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions.”
“The court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy,” she wrote. “I cannot think of many things more frightening.”
The ruling curtailed but did not eliminate the agency’s ability to regulate the energy sector, and the agency may still use measures such as emission controls at individual power plants. But the court ruled out more ambitious approaches, such as a cap-andtrade system.
It has also expressed skepticism toward the reach of other regulatory agencies, evident in recent decisions arising from the coronavirus pandemic. The court has ruled, for instance, that the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration was powerless to tell large employers to have their workers vaccinated or undergo frequent testing.
The question before the justices in the new case, West Virginia v. Environmental Protection Agency, was whether the Clean Air Act allowed the EPA to issue sweeping regulations across the power sector. More broadly, the court was asked to address whether Congress must “speak with particular clarity when it authorizes executive agencies to address major political and economic questions.”
That theory, often referred to as the “major questions doctrine,” played a key role in Thursday’s decision. Roberts, employing the phrase for the first time in a majority opinion, said it applied in cases of unusual significance and was meant to address “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”
The provision of the Clean Air Act that the Biden administration pointed to was too oblique and, therefore, ran afoul of the major questions doctrine, Roberts wrote.
Roberts’ opinion advanced a central goal of the conservative legal movement: curtailing the power of the administrative state. But it did so in a characteristically measured way.
In a full-throated 19-page concurring opinion, Justice Neil Gorsuch, joined by Justice Samuel Alito, elaborated on what Roberts had written.
“When Congress seems slow to solve problems, it may be only natural that those in the executive branch might seek to take matters into their own hands,” Gorsuch wrote. “But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”
In dissent, Kagan wrote that the statute at issue in the case had given the agency ample authority. “The Clean Air Act was major legislation, designed to deal with a major public policy issue,” she wrote, adding: “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise.”
She added that the agency was best suited to take on climate change.
“This is not the attorney general regulating medical care, or even the CDC regulating landlord-tenant relations,” she wrote. “It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.”