Welp. It happened.
Yesterday the Supreme Court didn't totally eviscerate the EPA's authority to act on carbon pollution, but it may have started the process, issuing an opinion in West Virginia v. Environmental Protection Agency that severely curtailed the EPA’s ability to regulate greenhouse gas emissions from the energy sector, based on the current language of the Clean Air Act.
The Court’s conservative supermajority formalized the "major questions doctrine," some legal flim-flammery that essentially grants the Court a massive new authority over the Executive branch, all disguised in the name of bestowing that power "back" to the Legislative branch. This polluter-packed conservative SCOTUS just invited industry to sue over every regulation that it doesn't like. (All of them.)
There are plenty of good reads already, with our favorites being Emily Sanders bringing the receipts to show that in this ruling, "Big Oil Gets What It Paid For," Sharon Lerner explaining the history in "How Charles Koch Purchased the Supreme Court’s EPA Decision", and Molly Taft's piece headlined "The Supreme Court Just Fucked the Planet".
While Supreme Court Justice Elana Kagan wasn't quite as bold in the dissenting opinion, joined by Justices Breyer and Sotomayor, she makes clear this ruling is a legal farce and based on a claim about EPA expertise that "is wrong." She writes "[t]his is not the Attorney General regulating medical care, or even the CDC regulating landlord-tenant relations. It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time."
"In case the majority forgot" is the type of grade-A snark found throughout the dissent, but let's back up. The first sentence of Kagan's dissenting opinion reads: "Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to 'the most pressing environmental challenge of our time.'"
Kagan cites the science and warns, "[i]f the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean." Which is true, but also an understatement, because parts of the Eastern seaboard have already been swallowed by the ocean.
She then discusses how the Clean Air Act should absolutely apply and justify EPA action on climate, but "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."
It was extreme action from the Court, for a decidedly un-extreme policy: "The ensuing years, though, proved the Plan’s moderation. Market forces alone caused the power industry to meet the Plan’s nationwide emissions target—through exactly the kinds of generation shifting the Plan contemplated."
She lambasts the majority, writing that "there was no reason to reach out to decide this case…But this Court could not wait—even to see what the new rule says—to constrain EPA’s efforts to address climate change."
Constraints that, she continues "fly in the face of the statute Congress wrote," then explaining how. "Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases."
The majority opinion indicates the conservative justices "do not really get regulation" and Kagan adds that the "majority merely serves to disadvantage what is often the smartest kind of regulation: market-based programs that achieve the biggest bang for the buck. That is why so many power companies are on EPA’s side in this litigation." In other words, the conservative SCOTUS just struck down what would, in a non-corrupt policy environment, have otherwise been the conservative-preferred market-based policy mechanism!
Then Kagan describes how "some years ago," she said “[w]e’re all textualists now.” But "[t]t seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards."
And so in the majority’s opinion, "one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed."
Kagan doesn't pull punches, writing clearly that the Court is shamelessly finding excuses to prevent action on climate.
Finally, the dissenting conclusion:
In short, when it comes to delegations, there are good reasons for Congress (within extremely broad limits) to get to call the shots. Congress knows about how government works in ways courts don’t. More specifically, Congress knows what mix of legislative and administrative action conduces to good policy. Courts should be modest.
Today, the Court is not. Section 111, most naturally read, authorizes EPA to develop the Clean Power Plan—in other words, to decide that generation shifting is the “best system of emission reduction” for power plants churning out carbon dioxide. Evaluating systems of emission reduction is what EPA does. And nothing in the rest of the Clean Air Act, or any other statute, suggests that Congress did not mean for the delegation it wrote to go as far as the text says. In rewriting that text, the Court substitutes its own ideas about delegations for Congress’s. And that means the Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.
The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.
While the conservative justices pretend to be giving Congress the authority that the Executive branch has supposedly usurped from it by having experts design regulations, what they're really doing is seizing that power for themselves.
[We’re taking next week off, so the ClimateDenierRoundup will return on 7/11/22]
