Supreme Court guts federal power to regulate coal plant emissions
As swaths of country face consequences of a changing climate, the justices hobbled executive power to act
President Biden’s climate agenda got chipped away by the Supreme Court on Friday in a 6-3 ruling.
Writing for the conservative supermajority, Chief Justice John Roberts said the decision to regulate carbon dioxide emissions should be left to Congress, not the Environmental Protection Agency.
“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,’” the Bush appointee wrote. “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.”
Justice Elena Kagan headed a dissent by the three Democrat-appointed justices.
“Today, the Court strips the Environmental Protection Agency of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,’” the Obama appointee wrote.
The case stems from the Clean Power Plan adopted by the EPA in 2015 to regulate carbon dioxide emissions from power plants. Litigation erupted after former President Donald Trump withdrew the plan, with the D.C. Circuit later vacating the repeal and the EPA offering a replacement solution known as the ACE rule, short for Affordable Clean Energy.
Today, the EPA says it no longer wants to use either the Clean Power Plan or ACE rule, but several Republican-led states and coal companies still wanted the high court to intervene. They said the EPA overstepped its authority when it created carbon regulations that would have outsized political and economic impacts. Environmental advocates worried meanwhile that any ruling in the case could curb the government’s authority to fight climate change at a critical moment.
When the justices heard the case in February, the conservative majority seemed skeptical of giving the EPA the authority it needs to fight climate change.
The case gives insight into how the justices will handle issues of administrative authority that come before them. During oral arguments, it appeared the justices had not reached a consensus on the major questions doctrine — a rule that the conservative majority has used to curb administrative authority not explicitly laid out by Congress.
In 1984, the court ruled in Chevron USA Inc. v. National Resources Defense Council Inc. that agencies should get deference on the interpretation of statutes unless decreed by Congress. The exception to that rule is if an agency’s actions are so broad they go beyond its authority. Earlier this term, the court wielded this doctrine to throw out the federal vaccine-or-test mandate for large private employers.
Climate scientists warned the justices in an amicus brief against limiting the government’s ability to respond to climate change. They predict the loss of thousands of lives as well as severe economic and environmental costs if the government is unable to take action.
Roberts lays out a number of cases where government agencies took actions the court found to be beyond the scope prescribed by Congress. Where the agencies argued that it was “common sense” that Congress would have delegated such powers, it was actually unlikely they did so. Agencies must have clear congressional authorization for the authority they claim, Roberts said.
“Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line,’” Roberts wrote. “We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’”
The label of “major questions doctrine,” Roberts said, addressed the recurring problem of agencies abusing their power by going beyond Congress’ charge. Roberts said this case qualifies under that label because the EPA recognized a “newfound power” within the “vague language” of a statute.
Roberts said the government’s view of the EPA’s authority is not only unprecedented but a fundamental revision of the statutes before it.
“Under its newly ‘discover[ed]’ authority, however, EPA can demand much greater reductions in emissions based on a very different kind of policy judgment: that it would be ‘best’ if coal made up a much smaller share of national electricity generation,” Roberts wrote. “And on this view of EPA’s authority, it could go further, perhaps forcing coal plants to ‘shift’ away virtually all of their generation — i.e., to cease making power altogether.”
Citing data on climate change and its consequences, Kagan said the EPA was charged with addressing the harms of a warming planet which includes the regulation of fossil-fuel-fired power plants. Kagan said the court has obstructed the government’s ability to regulate these plants from the beginning and chastises them for offering an advisory opinion today to further constrain their efforts.
“The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering,” Kagan wrote. “That new rule will be subject anyway to immediate, pre-enforcement judicial review. But this Court could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change.”
Noting her previous remarks where she said, “we’re all textualists now,” Kagan said that statement was wrong because the court’s ruling only uses that approach when it fits their wishes. Kagan classifies the majority as having an “anti-administrative-state stance.”
“The current Court is textualist only when being so suits it,” Kagan said. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as getout-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.”
The Center for Popular Democracy Action said the ruling was a blow to climate justice that would hurt already vulnerable communities Chief of Campaigns at Center for Popular Democracy Action Julio López Varona released the following statement in response to the SCOTUS decision on the EPA today:
“Failure to protect our environment and invest in clean energy sources has direct implications for our communities, especially for people of color, poor people, and the disabled,” Julio López Varona, chief of campaigns at Center for Popular Democracy Action, said in a statement. “Today’s decision will increase the environmental racism and injustice already plaguing our most vulnerable communities.”
West Virginia Solicitor General Lindsay See and the Department of Justice did not immediately respond to requests for comment on the ruling.