The U.S. Supreme Court hears arguments Monday in a major environmental case that could hobble the ability of federal agencies to regulate air pollution — and potentially, much more.
The case has been years in the making. It began in 2009 when the Obama administration faced an unpleasant reality. Climate change is a problem too big to address without an international agreement, but "the other nations would not do anything unless the Unites States went first, and showed it was serious," says environmental law professor Richard Lazarus.
So, the Obama administration set about doing that, first getting the auto industry to reduce carbon emissions, and then addressing the country's single largest carbon emissions problem—coal fired power plants. Instead of regulating the plants themselves, the Environmental Protection Agency set strict carbon limits for each state and encouraged the states to meet those limits by transitioning to alternative sources of energy—wind, solar, hydro-electric, and natural gas. The goal of the plan was to produce enough electricity to satisfy U.S. demand in a way that lowered greenhouse emissions.
The legal fight continues
The concept worked. Indeed, it worked so well, that even after Obama's Clean Power Plan was temporarily blocked by the Supreme Court and repealed by the Trump administration, market forces still continued the trajectory. Most utilities continued to abandon coal because it is too expensive. As the Sierra Club's Andres Restrepo observes, the EPA initially projected that it would reach the targeted emission reductions under the plan by 2030, but "even without the regulation in place, the industry achieved that level of reductions in 2019, 11 years early."
That, however, didn't stop the coal industry, West Virginia, and 16 other states from continuing their fight against the now-defunct Obama plan. Presumably, they did that to prevent the plan from being resurrected.
The states and the coal industry appealed to the Supreme Court last year. The Biden administration, fearing a disastrous ruling, "unilaterally surrendered the Clean Power Plan" and pledged to write a new rule that would regulate only the coal fired plants themselves, says Harvard's professor Lazarus. "They buried it, and they told the court it's gone. There is no more case."
But the court, in an unusually muscular assertion of power, agreed to review the now-revoked plan. It is no secret why. To one degree or another, the court's six-justice conservative supermajority has been itching to limit the power of regulatory agencies, and potentially even the power of Congress.
Implication for other federal agencies
In recent cases, the conservative court majority has begun to outline something it calls the "major questions doctrine," which could hamstring the authority of all agencies, from the EPA to the Securities and Exchange Commission to Federal Reserve Board.
In general, it is far less deferential to agencies than the court's previous case law suggested. Specifically, the major questions doctrine requires Congress to specifically authorize new policies or directions, even when the language of a statute gives an agency broad power. The question is, "has Congress spoken clearly enough to tell a federal agency that you can create a program that has substantial effects on the American economy," explains Tom Johnson, a lawyer who previously worked for West Virginia in its opposition to the Clean Power Plan.
Here, Johnson argues, the EPA went too far "reshaping the energy economy by determining what mix of clean power and coal-operated power we should have." It did so with a powerful stick; the Clean Power Plan set emissions caps below what was economically feasible, essentially coercing coal-fired plants to invest in alternative energy sources, he says.
Congress could be hobbled, too
But the major questions doctrine is not the only new twist that some of the court's conservatives have advocated. Another is something called the non-delegation doctrine. As some conservatives see things, Congress is quite limited in how much regulatory power it can give to agencies.
Jonathan Brightbill, an environmental lawyer who previously represented the Trump administration in the case, summarizes the outer edges of the nondelegation argument—namely that Congress cannot delegate unlimited power to executive agencies, no matter what the circumstances are. After all, he points out, "ours is a constitutional system," and the Constitution places legislative power in hands of representatives in Congress—not unelected executive agencies.
That point was initially made by Justice Clarence Thomas in a 2001 case, an EPA case no less. But no other justice joined his opinion. Even Justice Antonin Scalia, a conservative icon, rejected the non-delegation argument. Scalia's majority opinion greenlit delegation of broad regulatory authority as long as Congress guides the agency with an "intelligible principle."
But in 2019, Trump appointee Neil Gorsuch, sought to resuscitate Thomas's non-delegation argument in an opinion joined by Chief Justice John Roberts. They argued that the Founders rejected the idea that Congress could delegate its powers.
Law professors Nicholas Bagley and Julian Davis Mortenson have disputed this reading of history after an exhaustive examination of the debates at the founding.
"To the extent that we have evidence about what the Founders thought about the non-delegation doctrine, the evidence cuts pretty hard in the direction that they thought there wasn't any such thing," said Bagley in a recent episode of the podcast Strict Scrutiny.
Professor Lazarus, for his part, worries that severely limiting Congress's delegation powers would create a dysfunctional system of governance. He points out that, like the Clean Air Act at issue in this case, many statutes use "broad and capacious language" to authorize federal agencies to regulate commerce, health, and safety. These constitutional delegations were permissible when these laws were passed, but now, decades later, the Supreme Court seems to have changed its mind.
Taken to the extreme, the major questions and non-delegation doctrines could debilitate the federal agencies. For example, the Federal Reserve's power to set interest rates is certainly a power of "vast political and economic significance," Lazarus observes. Must Congress act every three months to review interest rates?
Lazarus doesn't think the court will go that far.
"At some point the court will find equilibrium," he says, "but that's going to be a time from now" and, when it comes to climate change, we are running out of time.
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