Today, in a ruling on a non-existent plan with non-existent damage to the people who brought the case, the Supreme Court used an opportunity to limit the ability of the Environmental Protection Agency to regulate power sector carbon emissions.
In a summer of great decisions by the U.S. Supreme Court, West Virginia. Environmental Protection Agency was one of the strange cases on the dossier. First, it was a dispute that did not really exist. The complaint was about the Clean Power Plan, a set of rules issued by the EPA in 2015 that would have forced power plants to significantly reduce carbon emissions by 2030. Only the plan never worked out. Fossil fuel executives and Republican officials raised the hell out of its potential economic consequences, went to court and quickly suspended the rules. A year later, then-President Barack Obama handed over the keys to the EPA to Donald Trump, and the plan was over forever.
Environmental advocates were therefore shocked and concerned when the Supreme Court decided to take up a challenge against the plan that had run through the courts. They had good reason. Chief Justice John Roberts wrote for the Conservative majority of six judges, saying the consequences of such a policy were too great to enforce without the express express authority of Congress.
This rationale does not undermine the EPA as much as some environmental advocates have feared. The decision will continue to enable the agency to regulate power plant emissions, albeit more narrowly than before. And the court did not take the opportunity to relax the precedent that says agencies like the EPA can tackle carbon emissions broadly. But the decision remains a serious blow, highlighting the court’s skepticism about ambitious action by federal agencies and providing a potential roadmap for future legal challenges for climate policy. “They say, ‘We’re loading the gun today, but we’m not going to point it at anything else,’ ‘said Jay Austin, a senior lawyer at the Environmental Law Institute, a non – profit legal group.
“The court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy,” Judge Elena Kagan wrote in her dissent, which was joined by the two other liberal judges. “I can not think of many things more frightening.”
The dispute, brought by a group of red state attorneys general, clung to a section of the Clean Air Act that allowed the agency to introduce the “best emission reduction system” at power stations. The question before the Court was one of scope. Perhaps the congress with the “best system” meant that the EPA could require emission reduction technology at specific power plants, as it had for other pollutants. Or perhaps it was a broader mandate, enabling measures that could lead to the shutdown of a coal-fired plant in favor of producing cleaner energy elsewhere. With the Clean Power Plan, the EPA opted for the more far-reaching interpretation.
But that disagreement alluded to an even bigger legal question: What can government bureaucrats do with the often vague instructions that Congress gives them? Traditionally, there is a certain way things are going in Washington: Elected officials cannot be expected to scratch out every detail of every policy, nor will they want to. So it becomes the work of people at regulatory agencies who take the sketched laws and put them into action. Judges usually do not like to stand in the way. Under a doctrine known as “Chevron Reverence,” referring to a 1984 Supreme Court ruling involving the oil company, judges repeatedly said it was best to get scientists and policy makers to do their job.