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.
