By Dewey Warner.
On October 29, the Supreme Court agreed to hear West Virginia v. Environmental Protection Agency. The case, a consolidation of four cases brought by coal and energy companies and Republican-led states, will scrutinize the power of the Environmental Protection Agency (EPA) to regulate carbon emissions under the Clean Air Act. The plaintiffs contend that the Act does not provide a constitutional basis for such regulation. The Court’s decision to hear this case is a monumental one. It creates the potential for an outcome that would thwart meaningful climate change action while upending the federal government’s regulatory apparatus. If the Supreme Court rules in favor of these states and companies, it will have profound implications.
THE CLEAN AIR ACT AND ITS PROGENY
In 1963, Congress enacted the Clean Air Act to address poor air quality following a period of rapid industrialization. This landmark legislation empowered the federal government to police air pollution. Amendments under presidents from both major political parties expanded this authority; the 1970 amendments enacted by President Nixon were especially significant. Those amendments were aimed at reducing air pollution that “may reasonably be anticipated to endanger public health or welfare.” To achieve that goal, the amendments mandated that power plants apply “the best system of emission reduction” possible, taking into account cost, energy requirements, and non-air quality health and environmental impacts.
In a 2007 case, Massachusetts v. Environmental Protection Agency, the Supreme Court clarified that the Act’s description of air pollution that may reasonably endanger public health or welfare is quite broad, encompassing things like carbon emissions from vehicles. The Court ruled that the EPA was actually required to regulate these emissions.
In 2015, the Obama administration unveiled the Clean Power Plan, which sought to reduce power plant carbon emissions and steer plants toward cleaner energy sources. The plan never took effect, however, as the Supreme Court in 2016 barred it amidst lower court challenges. In 2019, the Trump administration replaced that plan with the Affordable Clean Energy Rule, a considerably weaker regulation. The Court of Appeals for the District of Columbia Circuit struck down that rule in January 2021 because, in part, it too narrowly construed the EPA’s requirement to regulate carbon emissions. The Biden administration has not attempted to salvage either policy, deciding instead to design its own.
The D.C. Circuit’s ruling will be reviewed in West Virginia despite the Biden administration not yet issuing regulations. With no specific federal policy left to challenge, the plaintiffs instead contest altogether the constitutionality of the EPA’s regulation of carbon emissions within the power sector, alleging that Congress either cannot or has not properly delegated this authority.
STYMIEING CLIMATE CHANGE MITIGATION EFFORTS
It is extraordinary that the Supreme Court decided to hear this case before the Biden administration has even issued any emissions regulations. The administration argued in its brief that this is essentially an attempt to get the Court to “help guide the upcoming rule-making,” something “little more than a request for an impermissible advisory opinion.” Such preemptive guidance from the Court contradicts the basic notion that the highest judicial body is a check on the actions of other branches of government. It also overlooks Article III of the Constitution, which limits federal courts to hearing only actual cases or controversies before them, not hypothetical issues that might later arise.
In fact, the Court just this past June affirmed this very limitation on its power. In a 7–2 ruling in California v. Texas, Justice Breyer wrote for the majority that federal courts cannot “issue what would amount to an advisory opinion without the possibility of an Article III remedy,” noting that it “would threaten to grant unelected judges a general authority to conduct oversight of decisions of the elected branches of Government.”
Nonetheless, the Court will hear the case. So, what would a ruling in favor of the plaintiffs actually mean? For starters, it would severely hamper the Biden administration’s ability to take action at perhaps the most critical juncture that will ever exist in combating anthropogenic climate change. The window to mitigate devastating impacts is rapidly closing to a mere matter of years. With fossil fuel-burning power plants responsible for roughly one-third of annual US energy-related CO2 emissions, meaningful action to reduce US emissions will require reductions in this sector. If the Court decides that its interpretation of the Clean Air Act in Massachusetts somehow doesn’t extend to power plant emissions (and the fact that three of the four dissenting justices in that case remain on what is now a much more conservative Court suggests that it very well might), it would stymie the EPA’s ability to remedy this substantial source of emissions.
A MURKY FUTURE FOR THE ADMINISTRATIVE STATE
There is also concern that the Court will use this case as an opportunity to bolster the major questions doctrine or even resurrect the long-defunct nondelegation doctrine, potentially upending a substantial amount of federal regulation.
The plaintiffs’ assertion that regulatory authority has not properly been delegated to the EPA potentially raises broader doubts about federal regulation. Congress regularly passes legislation directing federal agencies to enforce new laws and delegates authority to those agencies to craft necessary regulations, creating what is often referred to as the administrative state. This enlistment of federal agencies promotes efficiency and produces expert-driven rules—both vital to functional modern governance. An enormous amount of federal regulation—spanning matters as diverse as workplace safety, prescription drugs, and food safety—stems from this scheme. If the EPA’s authority to regulate carbon emissions is stripped by the Court, it could delegitimize other federal regulations that are the result of similarly delegated authority. Ian Millhiser of Vox notes, “In this scenario, hundreds of laws could be weakened or even deactivated. Many of them would be gone for good, and reenacting any of these laws would require passing legislation through a bitterly divided Congress.”
If the Court rules for the plaintiffs, its reasoning will likely rest on one of two legal theories: the nondelegation doctrine or the major questions doctrine. The former is a long-defunct idea not really seen since disputes over the legality of New Deal programs in the 1930s. In simplest terms, it claims that Congress is restricted by the Constitution from delegating rulemaking authority to federal agencies because rulemaking is a form of lawmaking, over which only Congress holds power. Strict adherence to this doctrine would require Congress to onerously pass new legislation whenever any regulation is issued or updated. Despite the nondelegation doctrine’s longtime obsolescence, there are signs of support for it among some of the Justices, particularly Clarence Thomas and Neil Gorsuch. If the Court resurrects the doctrine, it is unclear just how strictly it would construe it, but the administrative state’s magnitude and long-accepted validity should urge caution.
The major questions doctrine is less extreme but is similarly defined by skepticism toward the administrative state. Put very simply, it posits that Congress is permitted to delegate authority to agencies but that this must be done clearly and explicitly, with Congress defining exactly how these agencies may regulate. In the absence of such instructions, the doctrine presumes that Congress does not intend to delegate authority over questions of major economic or political significance. This doctrine, too, has evidence of support among some Justices, particularly Brett Kavanaugh. Strengthening this doctrine would likely present a lower risk of regulatory chaos than reviving the nondelegation doctrine; however, there is a considerable amount of currently delegated rulemaking authority over matters with major economic or political significance, including the regulations at issue in this case. A ruling for the plaintiffs could raise doubts about these instances of delegation if they appear insufficiently specific (the 1970 Clean Air Act amendments, for example, of course did not foresee the 2021 need to limit carbon emissions in response to climate change).
The Supreme Court’s decision to hear this case “is the equivalent of an earthquake around the country for those who care deeply about the climate issue,” Harvard Law professor Richard Lazarus recently declared. Indeed it is, with the potential for aftershocks damaging to climate action as well as broader federal regulation.