Cooking the Planet by Limiting EPA’s Power to write Regulations and Rules

SCOTUS is moving to limit the power of congressionally legislated Agencies to write Regulations and Rules as delegated by Acts of Congress. The decision forces actions normally taken by empowered legislative Agencies back into Congress where they can be challenged. SCOTUS is picking on the EPA, restricting various regulations and rules it dislikes using the “major questions doctrine.”

Process

Congress writes Acts and passes them. These Acts may not contain all (if any) of the regulations and rules necessary to administer them. The thrust of the new Act may require singular or multiple regulations. In this case, the issue is air quality. The expertise does not lie in Congress or the courts (as shown) to decide what detail of regulation or rule may be needed. Congress delegates to agencies having the expertise to create the regs and rules to meet the intended result of the Act.

The EPA and other agencies write the regulations to administer the Act. Pre-acceptance, the EPA offers up the new regulations for public comment. The regulations may be adjusted by the EPA to meet the public input or not. Rules which are not interpretive are created from the regulations to meet the Act’s objectives. Got it?

Congress can and does delegate to the EPA and other agencies the power to create regulations and rules to meet the Law’s objectives as passed by Congress. The SCOTUS majority “now” appears to think differently about delegation of authority in what it calls the “major questions doctrine.”

Argument

Major questions doctrine is a legal theory used by the right. It states Congress must explicitly delegate to agencies the ability to make rules on given “major” questions, even if those questions appear to be covered by earlier laws. This is covered in earlier laws in this case.

Underlying the “major question” argument by the gang of six led by Roberts is writing for the majority, the EPA’s potential forcing power plants to shift to cleaner energy sources. Efforts such as building new renewable plants or buying clean credits from the cleaner grid to cover pollution. Roberts and the “gang of six” are claiming such rules are too significant to be allowed under the Clean Air Act. They claim Congress must specifically authorize the EPA to act. 

This fallback is coming outside of textualism which is the majorities typical path in rebutting proper law. Kicking it back to Congress will delay the necessary actions politically as the Act is altered. The SCOTUS majority knows this and their “political” maneuvering gives other political interests at the state level greater authority to influence law on a national level.

West Virginia Republican Attorney General Patrick Morrisey brought the case with several GOP counterparts and the coal industry to SCOTUS. Upon its decision, they hailed the opinion as the “correct decision to rein in the EPA, an unelected bureaucracy.”

This is precisely what has been done in the past as explained above. Without having such a process and procedure, a logjam of decision making would stymie Congressional action already stymied by politics forcing it to further detail Acts before passing it to an agency. Furthermore, the technological knowledge and expertise does not lie in Congress. Neither is there a willingness to act in concert nationally beyond business and political interests. It is

The Story

“US Supreme Court Votes to Cook the Planet by Limiting EPA’s Power,” Treehugger, Lloyd Alter

To nobody’s surprise, the U.S. Supreme Court voted 6 to 3 making it impossible for the Environmental Protection Agency (EPA) to protect the environment from climate change, to regulate carbon dioxide emissions from power plants, to meet American commitments under the Paris Agreement, and more likely to keep the planet from heating more than 2 degrees Celsius, let alone 1.5 degrees.

Justice Elena Kagan

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.

“20-1530 West Virginia v. EPA (06/30/2022),” (supremecourt.gov)

Robert’s Opinion

“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.’ But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”¹

It all started with an Obama-era Clean Power Plan authorized under the Clean Air Act, It had already been rejected by the courts just as former president Barack Obama was leaving office and what was left was torn up by then-incoming President Donald Trump.

Then there was a Trump-era plan that never took effect because it was struck down by the Court of Appeals. So why is this happening at all? Why isn’t this all moot? According to The Hill,

“The case was brought by several states led by West Virginia, who are seeking to preemptively block the Biden administration from setting standards that are likely to result in a shift away from coal plants and towards those powered by cleaner energy sources.”

Whatever else this Supreme 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.

Essentially, it was a gut of the EPA’s power to regulate anything that wasn’t in the original 1970 Clean Air Act authorized by Congress, back at a time when carbon dioxide wasn’t on the radar. It is almost as silly as saying the Second Amendment can only deal with muskets. 

Reading a SCOTUS decision is difficult because of its evasive twisting and turning in this decision. In her scathing dissent, Justice Elena Kagan is clear as a bell. I am going to let her words write most of the rest of this post.

Kagan’s Rebuttal

“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.”

Noting the dangers of climate change and its origin from carbon dioxide emissions, she continued: 

“Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil-fuel-fired power plants. Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that ’causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare.’ Carbon dioxide and other greenhouse gases fit that description.”¹

She noted how the court had already obstructed the Obama-era Clean Air Plan. Even though the Plan was obsolete and essentially dead.

“This Court determined to pronounce on the legality of the old rule anyway” and “there was no reason to reach out to decide this case.” 

Kagan said precedent shows that the EPA has the right to regulate, and used an interesting precedent: tobacco. The industry used the same strategy and the Supreme Court rejected it.

One of the arguments that the majority made—or should we say made-up—is the “major questions doctrine” where something of critical importance should be referred back to Congress. Kagan wrote: 

“Special canons like the ‘major questions doctrine’ magically appear as get-out-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.”¹

And it goes against history; the delegation of authority to agencies has been critical. A long excerpt:

“Over time, the administrative delegations Congress has made have helped to build a modern Nation. Congress wanted fewer workers killed in industrial accidents. It wanted to prevent plane crashes and reduce the deadliness of car wrecks. It wanted to ensure that consumer products didn’t catch fire. It wanted to stop the routine adulteration of food and improve the safety and efficacy of medications. And it wanted cleaner air and water. If an American could go back in time, she might be astonished by how much progress has occurred in all those areas. It didn’t happen through legislation alone. It happened because Congress gave broad-ranging powers to administrative agencies, and those agencies then filled in—rule by rule by rule—Congress’s policy outlines.”¹

That’s out the window now. When it comes to carbon emissions, the senators from big coal and ExxonMobil will make the decisions. Kagan concluded,

“Whatever else this Supreme 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.

This will not end here with the regulation of carbon dioxide. Expect to see the “major questions doctrine” used to stymie any regulation that big business doesn’t like from now on; they all have a get-out-of-jail-free card. Just wait and see what happens when the government tries to regulate car emissions. And as far as hitting the targets promised by the world’s second-largest carbon dioxide emitter, forget about it: They are toast and we are cooked.

The Court

Justices were skeptical Congress would leave to “agency discretion” the matter of deciding how much coal-based power generation there should be in the United States over the coming decades.²

Roberts: “The dissent contends that there is nothing surprising about EPA dictating the optimal mix of energy sources nationwide, since that sort of mandate will reduce air pollution from power plants, which is EPA’s bread and butter. But that does not follow. We would not expect the Department of Homeland Security to make trade or foreign policy even though doing so could decrease illegal immigration.”

It does follow as Congress delegates to the EPA which has technical expertise. Whereas, the determination of the numbers of immigrants allowable can be safely resolved in Congress.

Roberts Again: “No one would consider generation shifting a tool” in the Occupational Safety and Health Administration’s toolbox, “even though reducing generation at coal plants would reduce workplace illness and injury from coal dust.”²

Yes, it might be one of the considerations suggested by OSHA. This follows similar logic as what was applied in NYC. There may be a need for stiffer concealed carry of “bullet-spewing-weapons” there than what may be needed in western New York. The Court fails to recognize the expertise of the Agency the same as it ignored the need for stiffer regulation of weapons in some places of the country as compared to others. The court failed to recognize the expertise and knowledge of NYC. It is playing politics and feinting logical consequence with people’s lives by proclaiming a “no harm done” by its decision.

Gorsuch and Alito, endorsed the use of the so-called major questions doctrine, calling it a “relatively easy case” for its application.²

Oh, “bull sh*t,” it will be lost in Congress, and most likely the Senate.

There could be worse in a decision. What I see is SCOTUS running out the clock till mid-terms and the end of Biden’s first 4 years. Then it is another national election for the Presidency.

________

¹ United States, Supreme Court. West Virginia et al. v. Environmental Protection Agency et al. Certiorari to the United States Court of Appeals for the District of Columbia Circuit. 30 Jun. 2022.

²“Supreme Court restricts EPA’s ability to go big on climate” – E&E News, Climate Wire, Leslie Clark