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  • The San Juan Daily Star

Supreme Court limits EPA’s ability to restrict power plant emissions

By Adam Liptak

The Supreme Court on Thursday limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, dealing a blow to the Biden administration’s efforts to address climate change.

The vote was 6-3, with the court’s three liberal justices in dissent, saying that the majority had stripped the EPA of “the power to respond to the most pressing environmental challenge of our time.”

Chief Justice John Roberts, writing for the majority, only glancingly alluded to the harms caused by climate change. Justice Elena Kagan began her dissent with a long passage detailing the devastation the planet faces, including hurricanes, floods, famines, coastal erosion, mass migration and political crises.

The question in the case, Roberts wrote, turned on the scope of the language of the Clean Air Act. Under it, he wrote, Congress had not clearly given the agency sweeping authority to regulate the energy industry.

“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,’” he wrote, quoting an earlier decision. But, he added, “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

In dissent, Kagan wrote that the court had substituted its own policy judgment for that of Congress.

“Whatever else this court may know about, it does not have a clue about how to address climate change,” she wrote. “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,” she wrote. “I cannot think of many things more frightening.”

Patrick Morrisey, the attorney general of West Virginia and one of the leaders of the challenge to the EPA’s authority, welcomed the decision.

“EPA can no longer sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation,” he said.

Richard Lazarus, a law professor at Harvard, said “the court’s ruling is a major setback for EPA’s ability to address climate change, and it could hardly have come at a worse time.”

“By insisting instead that an agency can promulgate an important and significant climate rule only by showing ‘clear congressional authorization’ at a time when the court knows that Congress is effectively dysfunctional,“ he said, “the court threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all: climate change.”

The ruling curtailed but did not eliminate the agency’s ability to regulate the energy sector and the agency may still use measures such as emission controls at individual power plants. But the court ruled out more ambitious approaches such as a cap-and-trade system.

The implications of the ruling could extend well beyond environmental policy. It also signals that the court’s newly expanded conservative majority is deeply skeptical of the power of administrative agencies to address major issues facing the nation and the planet.

That skepticism has been evident in recent decisions arising from the coronavirus pandemic. The court ruled, for instance, that the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration was powerless to tell large employers to have their workers be vaccinated or undergo frequent testing.

The question before the justices in the new case, West Virginia v. Environmental Protection Agency, No. 20-1530, was whether the Clean Air Act allowed the EPA to issue sweeping regulations across the power sector. More broadly, the court was asked to address whether Congress must “speak with particular clarity when it authorizes executive agencies to address major political and economic questions.”

Justices have called that inquiry the “major questions doctrine,” and it played a key role in Thursday’s decision. Roberts, using the phrase for the first time in a majority opinion, said it applied in cases of unusual significance and was meant to address “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

The provision of the Clean Air Act invoked by the Biden administration, the chief justice wrote, was too oblique and so ran afoul of the major questions doctrine.

Roberts’ opinion advanced a central goal of the conservative legal movement, that of curtailing the power of the administrative state. But it did so in a characteristically measured way.

In a full-throated 19-page concurring opinion, Justice Neil Gorsuch, joined by Justice Samuel Alito, elaborated on what the chief justice had written.

“When Congress seems slow to solve problems, it may be only natural that those in the executive branch might seek to take matters into their own hands,” Gorsuch wrote. “But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

In dissent, Kagan wrote that the statute at issue in the case had given the agency ample authority. “The Clean Air Act was major legislation, designed to deal with a major public policy issue,” she wrote, adding: “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise,” she wrote.

She added that the agency was best suited to take on climate change.

“This is not the attorney general regulating medical care, or even the CDC regulating landlord-tenant relations,” she wrote. “It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.”

The Supreme Court’s conservative majority is generally committed to textualism, the mode of statutory interpretation that focuses on the words of the law. In a 2015 appearance at Harvard Law School, Kagan said that textualism had triumphed across the ideological spectrum. “We’re all textualists now,” she said.

On Thursday, she wrote that “it seems I was wrong.”

“The current court is textualist only when being so suits it,” she wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”

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