On Thursday, the conservative majority of the Supreme Court, with its 6-3 ruling in the West Virginia v. Environmental Protection Agency case, limited the agency’s power to protect the environment, and specifically to demand the emission reductions urgently needed. needed to limit global warming.
The court’s ruling limits any attempt to tighten restrictions on carbon dioxide emissions from power plants. It also threatens the Biden administration’s ability to impose new limits on exhaust emissions from cars and trucks and on methane emissions from oil and gas installations. As the three members of the court’s liberal minority wrote in sharp dissent, the majority decision deprives the EPA of the power “to respond to the most pressing environmental challenge of our time.”
Already struggling to persuade Congress to invest in renewable energy and forced by Russia’s invasion of Ukraine to push for increased fossil fuel production, the Biden administration is once again finding ambitious targets to combat climate change. face out of reach. The court’s hostile stance means the government must redouble its efforts to win congressional support for its spending plans. President Biden and Democratic leaders must also push for legislation clarifying the EPA’s authority to regulate emissions.
Thursday’s ruling also has implications far beyond environmental regulations. It threatens the ability of federal agencies to enact regulations of any kind, including those that ensure the safety of food, drugs and other consumer products, protect workers from injury, and prevent financial panic.
In 1984, an earlier generation of conservative Supreme Court justices formalized a doctrine of respect for regulatory judgment, modestly concluding that judges were neither experts nor elected officials, and should therefore leave such decisions to other hands. In Thursday’s ruling, the court ruled that the deference policy only applies to supposedly unimportant regulations. When it comes to “key questions” of regulatory policy, the court said, it wouldn’t hesitate to question regulators — and pass rules it decided there was no clear order from Congress.
The decision amounts to a warning shot across the bow of the governing state. The current conservative court majority, engaged in a counter-revolution against the norms of American society, is trying to curtail the efforts of federal regulators to protect the health and safety of the public. The court already invoked similar logic during the Covid pandemic to remove Covid workplace testing requirements and a federal moratorium on evictions. And by refraining from defining a threshold for what constitutes an “important question,” the court is dropping a sword over each new line.
The West Virginia case dates back to 2015, when the EPA imposed new limits on carbon dioxide emissions from coal-fired power plants. The agency determined that it was impossible for those plants to reduce emissions to what it considered safe levels while producing the same amount of electricity. Burning coal is just too dirty. Accordingly, it instructed companies to reduce emissions by cutting production or switching to other forms of energy generation.
The rule never came into effect. The court postponed its implementation in 2016 and the Trump administration withdrew it in 2019. But the litigants, which included the states of West Virginia and North Dakota and a few coal companies, went ahead with a lawsuit to ensure the rule remained dead.
Chief Justice John Roberts, writing for the majority, agreed with their claim that the EPA did not have the power to require companies to shift resources to other forms of power generation. Mr. Roberts wrote that the court’s long-standing policy of respecting the agency’s own assessment of its authority in such cases did not apply because the stakes were too high. It’s a theory long championed by Judge Neil Gorsuch, who concurred that “administrative agencies should be able to point to ‘clear congressional authority’ when they claim authority to make decisions of great ‘economic and political significance’.”
The EPA clearly has the legal authority to set an acceptable standard for emissions, in this case carbon dioxide, and then impose restrictions on emitters, in this case coal-fired power plants. The court has not disputed these facts. Instead, it ruled that the Clean Air Act does not give the EPA sufficient powers to meet those emissions standards.
Chief Justice Roberts described this conclusion as a defense of congressional authority — a claim of the primacy of elected officials. But limiting the power of regulators should not be seen as a shift in decision-making; on the contrary, it effectively prevents good decisions from being made.
Congress has decided, and rightly so, that regulatory agencies, staffed by experts, are the best available mechanism for a representative democracy to make decisions in technically complex areas. The EPA is the entity Congress relies on to figure out how clean the air should be and how to get there. To claim it lacks the power to carry out its basic responsibilities is simply sabotage.
It’s a telling fact that, in response to market forces, power producers have achieved the cleaner energy shift that the EPA set out to demand in 2015, validating the agency’s assessment of what it could reasonably require.
Chief Justice Roberts’ predecessors acknowledged their own limitations. In the 1984 ruling formalizing the court’s policy of regulatory deference, Judge John Paul Stevens wrote that “judges are not experts in the field and are not part of any of the political branches of government.” Both points are important. The court lacks technical expertise and an electoral mandate. Thursday’s decision to demand a more muscular role is thus a blow to both the public interest and democracy.