Jesse is on vacation until August, so this is a special, Rob-only summer episode of Shift Key.
Over the past few weeks, the U.S. Supreme Court has profoundly changed how the federal government does its day-to-day work. In a series of landmark rulings, the high court sharply curtailed the ability of government agencies — including the Environmental Protection Agency — to write and enforce rules and regulations.
That will change how the federal government oversees the products we buy, the air we breathe, and the water we drink. But it could also alter how the government regulates heat-trapping greenhouse gas pollution.
But how, exactly, will these new rulings affect climate law? And is there an upside to the deregulatory revolution? This week, Rob holds a roundtable with two environmental law experts about what the high court’s rulings mean for America’s decarbonization project — and whether the court just inadvertently made the country’s already burdensome permitting process even worse. They are Jody Freeman, a Harvard law professor and former Obama administration lawyer, and Nicholas Bagley, a University of Michigan law professor.
This episode of Shift Key is hosted by Robinson Meyer, the founding executive editor of Heatmap.
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Here is an excerpt from our conversation:
Nicholas Bagley: I was working at the court and working for Justice Stevens when Massachusetts v. EPA was decided, and you know, even at the time, the level of frustration and even anger from the conservative justices — it was a 5-4 decision — was pretty intense. And since that time, of course, the conservatives have really consolidated their authority on the court.
And there are a lot of cases after
Mass v. EPA that accept the principle that EPA can regulate greenhouse gases while still finding ways to push back on agency efforts to do so. And so, is Mass v. EPA going to be overruled? Well, the court doesn’t tend to like to overrule statutory holdings. Once the Supreme Court has said statute means X, it gives that determination a very high degree of precedential effect, even more so than in the constitutional context. The theory is that if Congress doesn’t like what we said, Congress can always fix it. In the constitutional context, we actually have to be a little bit more flexible because Congress can’t just fix any mistakes that we might make. So there’s a kind of super stare decisis, is what they call it, a super precedential effect of that decision.
And so far, the court hasn’t decided to kind of go after that interpretation, and I’m not sure they will. And I’m not sure they need to [with] all of these different doctrinal outs that they’ve got: the major questions doctrine,
we’re going to interpret your statute differently, we’re going to strike it down on arbitrary and capricious grounds, it gives them all the tools they need to push back on EPA without actually taking the big, bold, and splashy step of overruling Mass v. EPA.
Jody Freeman: You can see all these cases as revenge for Mass v. EPA, a sort of reaction to Mass v. EPA in a funny way. I mean, to be sure, if the court currently constituted were to have to rule on that case, they would never have decided that the Clean Air Act authorizes regulation of greenhouse gas. So they’re fighting a rearguard action in all the ways Nick suggested.
This Supreme Court appears to be, as one scholar said, a sort of anti-novelty court. That is, agencies shouldn’t do new things, Congress should have to pass new statutes for that to happen. And it’s a really disabling notion because Congress passes broad statutes that say things like “protect the public health with an adequate margin of safety.” They give the agency broad authority to, say, protect workers against grave dangers in the workplace without necessarily defining what “grave danger” could mean, or what “public health protection” could mean, because they expect the agencies to develop their view over time, depending on what science says and what technology makes available and so on.
And this court seems to be opposed to evolution, right? To progress and letting agencies adapt over time. And in that sense, I think they’re a kind of small-C conservative court, in the sense that change is bad, and certainly regulatory change is bad unless Congress itself authorizes agencies anew to do something. And that, in and of itself, is, if not anti-regulatory, it’s hostile to any kind of innovation or adaptation by the federal bureaucracy.
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Music for Shift Key is by Adam Kromelow.
