Yet another decision we all saw coming will now limit the Environmental Protection Agency’s (EPA) ability to do its job. In a 6-3 ruling, the Supreme Court sided with polluters in the case of West Virginia v. EPA, curtailing the agency’s power to place limits on greenhouse gas emissions from power plants and narrowing—if not gutting—the Clean Air Act. Chief Justice John Roberts issued the opinion, which he called a “major questions case.” The major questions doctrine is a conservative talking point not found in the Constitution but one that, in the case, forces Congress to bear the brunt of responsibility of enforcement rules or even delegation to the EPA. Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, and Samuel Alito all apparently sided with Roberts on this.
Per Roberts’ opinion, “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’ … But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.”
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Experts from the O’Neil Institute for National and Global Health Law concur that the opinion itself is devastating. Andrew Twinamatsiko, associate director of the Health Policy and the Law Initiative, worries about its far-reaching implications for other agencies:
The Court’s decision in West Virginia goes beyond the EPA’s power to fight climate change. It will limit federal agencies from implementing and interpreting federal law and give unelected judges the power to second-guess Congress and the White House. West Virginia is especially alarming for those who care about health care and public health because Congress relies on the expertise of federal agencies—such as the FDA, CDC, NIH, etc.—to interpret and implement legislation. West Virginia is sadly yet another stop on the Court’s path to handcuff federal agencies and follows recent decisions to gut the CDC and OSHA’s power to fight COVID-19.
He’s not alone in his fears. In fact, members of the court itself feel similarly.
Justice Elena Kagan wrote the dissenting opinion and clearly understands the stakes here more so than Roberts, who seems to think it would be nice in theory to reduce emissions but that twisted, conservative academic bullshit stands in the way of actually allowing the EPA to do its job. Unlike Roberts or Gorsuch, who truly do not care to understand how the climate crisis will grow all the worse with this decision, Kagan actually cites Intergovernmental Panel on Climate Change reports that say as much. In calling out the Supreme Court for its nefarious, continued stymying of the EPA, Kagan does not hold back: “This Court has obstructed EPA’s effort from the beginning. Right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts.”
True, this case stems from a plan that was never implemented and utterly destroyed by the Trump administration. In bringing it in the first place, the many attorneys general from conservative, polluting states saw an opportunity to argue harm would be done before a policy even went into effect. And it worked. This bodes terribly for the forthcoming Sackett v. EPA, a similarly “murky” case in which the question at its center is whether wetlands constitute waterways of the U.S. I’d be naive to think the Supreme Court would do anything but set its sights on destroying the Clean Water Act next.
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