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  • Writer's pictureKatie Babson

The Supreme Court and the Future of Climate Legislation

BY KATIE BABSON



In a landmark decision, the United States Supreme Court announced its 6–3 ruling in West Virginia v. Environmental Protection Agency (EPA) on June 30, 2022. The Court’s majority decision struck down the controversial Section 111(d) of the Clean Power Plan (CPP), which sought to further the EPA’s mission of protecting human health and the environment. As a result, the Court made it increasingly difficult for the federal agency to regulate carbon dioxide emissions from existing power plants. However, the Court’s controversial ruling will also curb the federal government’s ability to combat climate change and contains broader implications regarding federal regulatory power over greenhouse gas emissions. For federal bureaus seeking to implement climate legislation, this has presented a disturbing question: what does this decision mean for U.S. climate policymaking?


Originally, the CPP was enacted by President Obama in 2015 to implement broad requirements for states to limit carbon dioxide emissions from existing power plants. The CPP planned to enact a generation shifting approach, which refers to increasingly relying on renewable energy and reducing reliance on coal-fired power plants over an extended amount of time. However, President Trump asserted that Section 111(d) of the CPP, which allowed the EPA to “[determine] the best system of emissions reduction,” was an overreach of executive authority. The Trump administration further claimed the EPA lacked congressional authority to require states to use a generation shifting approach and was thus acting outside of its legal bounds. In place of the CPP, President Trump issued the Affordable Clean Energy rule (ACE). As a result, this rule effectively repealed the CPP and, as the EPA describes, “restores rule of law, empowers states, and supports energy diversity.” Essentially, the ACE rule restricts the EPA to only help states develop guidelines when requested, rather than allowing the EPA to possess its initial broad regulatory authority that Section 111(d) granted it.


In West Virginia, the EPA argued it possessed the right to set emission limits via generational shifting based on Section 111(d) of the CPP because it had been granted congressional authority to identify the optimal method of reducing emissions. However, the petitioners, West Virginia, et al., argued they experienced a significant injury because of the EPA’s overbearing authority to enforce that states “more stringently regulate power plant emissions within their borders.” Petitioners also asserted that generational shifting would force states into “reordering the energy system” by pushing utilities away from coal power to cleaner forms of energy. Essentially, West Virginia argued that the EPA’s authority under Section 111(d) was too broad and could potentially result in a repeat overreach of federal authority.


In the majority opinion delivered by Chief Justice Roberts, the Court declared that Congress had not authorized the EPA to limit emissions through a generation shifting approach. Chief Justice Roberts contended that it was the EPA, rather than the states, who appointed themselves as the ultimate authority when “[deciding] the amount of pollution reduction that must ultimately be achieved.” The Court majority cited concerns over the separation of powers between the legislative and executive branches because the EPA had become a policymaker – a congressional power reserved to Congress alone.


In justifying their argument to maintain their conservative conception over the distinct branches of government, the Court established and formalized the “major questions doctrine.” This novel, self-imposed constraint imposed by the Court holds that in “extraordinary cases,” such as West Virginia, the judiciary should not defer to a federal agency’s statutory interpretation that employs questions of “vast economic or political significance.” Here, an agency must demonstrate “clear congressional authorization for the power it claims” and cannot “read into ambiguous statutory text the [petitioner] claimed to be lurking there.” In essence, Congress must explicitly state a federal agency possess regulatory powers. Such a doctrine is significant because it sharply breaks away from the judicial precedent of deferring to executive authority in interpreting administrative agencies' statutes, provided Congress has failed to offer a contrary answer.


As a result, the major questions doctrine makes West Virginia v. EPA a landmark case because the Court’s decision will result in drastic delays in climate action if a court deems a statutory issue as “extraordinary” or of “great significance.” Thus, the Court has effectively made it increasingly difficult for federal agencies to rely on their authority. Although the EPA is still permitted to regulate carbon dioxide emissions from the power sector, the restrictions on its authority severely curbs the federal agency’s ability to reduce emissions. As a result, this raises serious concerns as to whether future climate legislation will pass the Court’s official test.


Justice Kagan, in her blistering dissent, was joined by Justices Breyer and Sotomayor and made it clear that the Court’s majority opinion ultimately hinders the EPA from acting on its congressional authority. She asserted that the EPA will now be unable to extensively govern activities releasing substances that “causes, or contributes significantly to, air pollution,” which can be reasonably interpreted to harm public health or welfare. Regulating carbon dioxide emissions, which directly contribute to global warming, blatantly fits such a description. As the dissenting justices contend, Section 111(d) of the CPP is not an overreach of the EPA’s power. Rather, when taken in its entirety, the CPP, in its entirety, “provides regulatory flexibility and discretion.” Therefore, the Court has obstructed the EPA’s congressionally authorized efforts to curb carbon emissions.


Most concerningly, however, this issue extends well beyond the EPA and affects all federal agencies, many of which may seek to draft climate-related policies. This will subject all agency regulations to court review based on the ambiguous major questions doctrine. Thus, the mere potential for judicial review may freeze further efforts to implement climate legislation. Additionally, judicial review will create further delays as agencies are required to determine the limits of their oftentimes vague and flexible congressional powers. This will constrain federal agencies to wait for the judiciary to review their assessments, thus delaying legislation imperative to reducing the immediate adverse outcomes of climate change.


In moving forward there are two urgent rules the EPA must establish to regulate power plants emitting greenhouse gasses. First, it ought to finalize an alternative to the generation shifting approach and reduce emissions. Additionally, it is crucial for there to be a definitive rule that addresses carbon emissions from new power plants, rather than solely pre-existing power plants. Although the White House has announced that drafts for both rules will be released in March 2023, the legislative approval process must be sped up and push these rules into the final stage. In conjunction, the EPA needs to tighten regulations surrounding conventional pollutants and reduce additional emissions contributing to climate change.


Ultimately, the decision issued in West Virginia has forced Congress to play a critical role in determining the United States’ climate efforts. Because federal agencies now lack broad regulatory authority in matters of “economic and political significance,” Congress must enact federal climate legislation and explicitly provide federal agencies with regulatory authority over climate change matters. Therefore, the legislative branch is obligated to diminish delays regarding legislation aimed at reducing carbon emissions. However, this will become increasingly arduous as the House and Senate remain at odds with one another, separated by partisanship and political ideology. Democrats remain frustrated with climate inaction, trying to contend with internal party turmoil as long-standing incumbents are poised to retire in the midst of a presidential scandal that threatens the 2024 Presidential Elections. Meanwhile, House Republicans continue to squabble over committee seats, internal quid pro quos for House Speaker, and fervent backlash from within their own party.


As the dissenting Justices ominously warn, “the Court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy.” The Court, in place of Congress, has overstepped its congressional bounds by engaging in policymaking, disregarding the EPA’s congressional authority, and effectively inserting its conservative ideology into legislative and executive affairs to determine Congress’ intents over the EPA’s regulation of carbon emissions. Justice Kagan concludes her dissent against the Court’s majority decision by expressing that “I cannot think of many things more frightening.” Her final statement echoes the same fears of many climate activists: that effective action against global warming will remain discarded on the congressional floor, Oval Office, and judicial wastebins as the planet continues to rapidly warm.


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