Sign In or Create an Account.

By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy


The Supreme Court’s Ongoing War Against the EPA

The Inflation Reduction Act is probably protected from SCOTUS. New environmental regulations? Not so much.

A gavel striking a polar bear.
Heatmap Illustration/Getty Images

Climate change is a huge danger to countless lives. All indications are the Biden administration takes the threat seriously. The Inflation Reduction Act, in particular, demonstrates that climate change has become a top priority for the Democratic coalition. But with Republicans in control of the House of Representatives, further sweeping legislation is off the table for at least two years.

The good news is Congress has already given the executive branch ample authority to address climate change. The bad news is it's highly likely that the Republican-controlled Supreme Court will stop it from using this authority. The Republican super-majority on the Court is coming for climate regulation.

The crucial harbinger of what is likely to come is the 2022 case West Virginia v. EPA. On one level, the decision’s effects were narrow, because the program it held to be unconstitutional (Obama’s Clean Power Plan) had never gone into effect. But the decision is ominous because of the grounds on which the Court struck down the CPP.

In an opinion written by Chief Justice Roberts and joined by other conservative justices, the Court held that the program ran afoul of the recently-invented “major questions” doctrine.” According to Roberts, the doctrine means when considering some “extraordinary cases” with heightened “economic and political significance,” the Court should “hesitate” and require that the administrative agency point to “clear congressional authorization” for its actions. Roberts asserted that the Environmental Protection Agency had failed to show a clear authorization, and hence the CPP exceeded the EPA’s authority.

The decision reflects an implausibly narrow view of the EPA’s authority. Section 111 of the Clean Air Act authorizes the EPA to regulate pollutants that “may reasonably be anticipated to endanger public health or welfare.” It also authorized the EPA to identify the “best system of emissions reduction” for power plants. The Clean Power Plan fell squarely within the statutory scheme. Greenhouse gases that accelerate climate change would seem to a paradigmatic example of what Congress wanted the EPA to regulate – carbon emissions are pollutants, and there can be no serious question that climate change poses a major threat to public welfare and safety. And the CPP’s measures to encourage power companies to either use cleaner sources or participate in a cap-and-trade program fall within its authority to select the best system for emissions reduction.

The majority’s holding that the CPP falling within the terms established by the statute was insufficient because a problem as big as climate change requires more specific authorization is perverse. As Justice Kagan observed in her dissent, a “key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.” Congress did not think it could anticipate every environmental problem that could be caused by air pollution, which is precisely why it delegated the authority to address unexpected problems to the EPA.

Indeed, environmental regulation is a classic example of why Congress’s authority to delegate should be deferred to rather than subjected to ad hoc rules created by the federal judiciary. Environmental science is not a static field. There are frequently new findings about the effects of various environmental hazards and new technologies for addressing these hazards in an economically feasible way. Even a highly functioning and efficient legislature filled with experts in environmental science and economics would not be able to issue specific regulations reflecting new evidence and technological developments, and the actually existing, frequently gridlocked Congress meets neither of these conditions. This is why the longstanding practice is for Congress to set the goals and for the EPA to issue regulations commensurate with these goals, subject to oversight by elected officials in the legislative and executive branches.

The next major legal battleground over environmental regulations is likely to be the new clean air rules being proposed by the EPA. These proposals are also an excellent illustration of how the process should work. The federal agency charged by Congress with helping to preserve the environment is taking advantage of the latest scientific discoveries to update rules for the first time in more than a decade in order to protect Americans from being exposed to dangerous pollutants. A legal universe in which any new set of rules triggers litigation in front of hostile federal judges frustrates the goals Congress sought to accomplish by establishing the EPA.

Indeed, the reason Republican judges are targeting this system is not because it doesn’t work, but because it does. When it invokes newly-minted rules like the “major questions” doctrine, the Court claims to be upholding the prerogatives of Congress. But it is easy to see that this is disingenuous ruse. As University of Texas Law professor Steve Vladeck points out, “*no* Congress will ever have the *capacity* to regulate across every issue with the specificity that "major questions" requires. It's not pro-democracy; it's anti-regulation.” West Virginia v. EPA does not reflect a desire to uphold the authority of Congress; it reflects the Republican Party’s hostility to environmental regulation.

It is true that other approaches taken by Congress may be less likely to face judicial hostility. The major climate provisions in the Inflation Reduction Act generally rely on direct federal spending, which is less likely to provoke a negative response from the judiciary. It would be premature to conclude there will be no effective legal challenges to these climate provisions, but generally clean energy spending is less likely to be struck down than new regulations. But while if this situation holds it gives Congress some leeway to establish some climate goals, it would not be sufficient. Protecting the environment and combating climate change requires the regulation of polluters, not just spending on clean energy.

And this is what makes West Virginia v. EPA such an ominous precedent. Even if a Democratic Congress and Democratic president of the future could overcome a Senate tilted in favor of fossil fuel-producing states and pass an updated Clean Air Act that more clearly authorized the EPA to regulate carbon emissions, it is not clear how they could overcome the obstacle of a Supreme Court that is both hostile to environmental regulation and willing to engage in bad faith readings of statutes to get its way. When Congress updated the Voting Rights Act to reject the narrow interpretation of its anti-discrimination provisions advanced by the Reagan administration, the Roberts Court just willfully misread the statute as if Reagan (and his lead Department of Justice spokesperson on the issue, John Roberts) had actually won the initial fight.

As long as conservatives control the Supreme Court, environmental regulators won't be allowed to do their jobs.

Scott Lemieux profile image

Scott Lemieux

Scott Lemieux is Assistant Teaching Professor at the University of Washington. He has written about the Supreme Court and American politics for venues including the Guardian, Washington Post, NBC News, and The American Prospect.


Is Sodium-Ion the Next Big Battery?

U.S. manufacturers are racing to get into the game while they still can.

Sodium-ion batteries.
Heatmap Illustration/Getty Images, Peak Energy, Natron Energy

In the weird, wide world of energy storage, lithium-ion batteries may appear to be an unshakeably dominant technology. Costs have declined about 97% over the past three decades, grid-scale battery storage is forecast to grow faster than wind or solar in the U.S. in the coming decade, and the global lithium-ion supply chain is far outpacing demand, according to BloombergNEF.

That supply chain, however, is dominated by Chinese manufacturing. According to the International Energy Agency, China controls well over half the world’s lithium processing, nearly 85% of global battery cell production capacity, and the lion’s share of actual lithium-ion battery production. Any country creating products using lithium-ion batteries, including the U.S., is at this point dependent on Chinese imports.

Keep reading...Show less
Electric Vehicles

AM Briefing: Tesla’s Delay

On Musk’s latest move, Arctic shipping, and China’s natural disasters

Tesla Is Delaying the Robotaxi Reveal
Heatmap Illustration/Getty Images

Current conditions: Heavy rains triggered a deadly landslide in Nepal that swept away 60 people • More than a million residents are still without power in and around Houston • It will be about 80 degrees Fahrenheit in Berlin on Sunday for the Euro 2024 final, where England will take on Spain.


1. Biden administration announces $1.7 billion to convert auto plants into EV factories

The Biden administration announced yesterday that the Energy Department will pour $1.7 billion into helping U.S. automakers convert shuttered or struggling manufacturing facilities into EV factories. The money will go to factories in eight states (including swing states Michigan and Pennsylvania) and recipients include Stellantis, Volvo, GM, and Harley-Davidson. Most of the funding comes from the Inflation Reduction Act and it could create nearly 3,000 new jobs and save 15,000 union positions at risk of elimination, the Energy Department said. “Agencies across the federal government are rushing to award the rest of their climate cash before the end of Biden’s first term,” The Washington Post reported.

Keep reading...Show less

What the Conventional Wisdom Gets Wrong About Trump and the IRA

Anything decarbonization-related is on the chopping block.

Donald Trump holding the IRA.
Heatmap Illustration/Getty Images

The Biden administration has shoveled money from the Inflation Reduction Act out the door as fast as possible this year, touting the many benefits all that cash has brought to Republican congressional districts. Many — in Washington, at think tanks and non-profits, among developers — have found in this a reason to be calm about the law’s fate. But this is incorrect. The IRA’s future as a climate law is in a far more precarious place than the Beltway conventional wisdom has so far suggested.

Shortly after the changing of the guard in Congress and the White House, policymakers will begin discussing whether to extend the Trump-era tax cuts, which expire at the end of 2025. If they opt to do so, they’ll try to find a way to pay for it — and if Republicans win big in the November elections, as recent polling and Democratic fretting suggests could happen, the IRA will be an easy target.

Keep reading...Show less