This June the Supreme Court issued opinions on several controversial issues: guns, abortion, and the environment. While the overall effect of the opinions remains uncertain, the Court’s decision in West Virginia v. EPA forecloses a key avenue for federally mandated decarbonization. And yet the opinion represents somewhat a mixed bag, it could have gone farther, as some had speculated the imminent upheaval of the administrative state, but there remains an unanswered question regarding the breadth of application for the Court’s newly fashioned “major questions doctrine.” Ultimately, the Court’s decision represents another nail in the coffin for U.S. efforts to reduce its carbon emissions and avert continued global warming. Because this decision has already spawned much commentary by administrative law and environmental law scholars (for example, here and here), this post provides just a short description of this issue for the uninitiated.
In 2015, the EPA promulgated the Clean Power Plan (“CPP”) as the Obama Administration’s regulatory program to curb carbon dioxide emissions from existing coal-fired power plants. However, due to a federal court injunction and a change in presidential administrations, the CPP never went into effect. The plan imposed limits on the amount of allowed emission of carbon dioxide from coal power plants and established the agency’s best system of emissions reduction (“BSER”). The BSER for operators of existing coal power plants ultimately would transition coal plants to gas, and gas plants to renewable sources as the only practical way to meet the emissions target. The Court questioned whether Congress intended to empower the EPA with the authority to require grid operators to close existing coal power plants and mandate a shift toward less carbon intensive power production.
The Court gave name to its skepticism as the Major Questions doctrine. It presumes that “Congress intends to make major policy decisions itself, not leave those decisions to agencies.” The doctrine is a relatively new creation of the Supreme Court, having its origins in the FDA v. Brown & Williams case. The Court’s majority characterizes the purview of the doctrine as certain extraordinary cases involving the principles of separation of powers and a practical understanding of legislative intent, where a federal agency appears to assert regulatory powers of such breadth over a sector of the economy or society that the Congress could not have intended to delegate under the relevant statute. Because of the broad possibilities of what constitutes major policy decision, this doctrine has the potential to throw previously legislated issues back to a more divided Congress.
Here, the Court has decided that when Congress created a gap-filler provision in Section 111(d) of the Clean Air Act, it was not sufficiently explicit as to whether this provision could result in regulatory action amounting to a major policy decision. The Court noted that historically the EPA had not used Section 111(d) in any significant manner prior to the CPP. Thus, the Major Questions doctrine appears to create an additional barrier that prevents novel regulations emerging from old law.
The upshot of this ruling is clear, the Court intends to restrain major novel regulatory action without explicit authority granted by Congress. This doctrine could prevent agencies from addressing novel problems in a variety of areas. As it relates to climate change, this decision hamstrings the federal government’s ability to implement a centralized plan to transition the country away from fossil fuels. Once again, business-as-usual politics ignore or disbelieve our ongoing climate emergency.