The Supreme Court has made it even harder to fight climate change
By The Editorial Board
Last Thursday, the Supreme Court’s conservative majority, with its 6-3 ruling in the case of West Virginia v. Environmental Protection Agency, curtailed the power of the agency to protect the environment, and specifically to require the reductions in emissions that are urgently necessary to limit global warming.
The court’s ruling constrains any effort to tighten restrictions on carbon dioxide emissions from power plants. It also threatens the Biden administration’s ability to impose new limits on tailpipe emissions from cars and trucks and on methane emissions from oil and gas facilities. As the three members of the court’s liberal minority wrote in a stinging dissent, the majority’s decision strips the EPA of the power “to respond to the most pressing environmental challenge of our time.”
The Biden administration, already struggling to persuade Congress to invest in renewable energy and compelled by Russia’s invasion of Ukraine to push for increased production of fossil fuels, once again finds its ambitious goals for confronting climate change slipping beyond reach. The court’s adversarial posture means that the administration must double down on its efforts to win congressional support for its spending plans. President Joe Biden and Democratic leaders should also press to pass legislation clarifying the EPA’s authority to regulate emissions.
Thursday’s ruling also has consequences far beyond environmental regulation. It threatens the ability of federal agencies to issue rules of any kind, including the regulations that ensure the safety of food, medicines and other consumer products, that protect workers from injuries and that prevent financial panics.
In 1984, an earlier generation of conservative Supreme Court justices formalized a doctrine of deference to the judgment of regulatory agencies, modestly concluding that judges were neither experts nor elected officials, and therefore ought to leave such decisions in other hands. In Thursday’s decision, the court asserted that the policy of deference applies only to supposedly unimportant regulations. When it comes to “major questions” of regulatory policy, the court said, it would not hesitate to second-guess regulators — and to strike rules that it decided did not have a clear congressional warrant.
The decision amounts to a warning shot across the bow of the administrative state. The court’s current conservative majority, engaged in a counterrevolution against the norms of American society, is seeking to curtail the efforts of federal regulators to protect the public’s health and safety. The court already invoked a similar logic during the pandemic to strike down workplace COVID testing requirements and a federal moratorium on evictions. And by refraining from defining a threshold for what constitutes a “major question,” the court is leaving a sword hanging over every new rule.
The West Virginia case has its origins in 2015, when the EPA imposed new limits on carbon dioxide emissions from coal-fired power plants. The agency determined that it was impossible for those plants to reduce emissions to what it regarded as a safe level while producing the same amount of electricity. Burning coal is simply too dirty. Accordingly, it directed companies to cut emissions by reducing output or by shifting to other forms of power generation.
The rule never took effect. The court stayed its implementation in 2016, and the Trump administration withdrew it in 2019. But the litigants, including the states of West Virginia and North Dakota and a pair of coal companies, pressed ahead with a lawsuit to make sure the rule stayed dead.
Chief Justice John Roberts, writing for the majority, agreed with their claim that the EPA did not have the authority to require companies to shift resources to other kinds of power generation. Roberts wrote that the court’s long-standing policy in such cases of deference to the agency’s own assessment of its authority did not apply because the stakes were too high. It is a theory long championed by Justice Neil Gorsuch, who explained in a concurring opinion that “administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’”
The EPA clearly has the legal authority to set an acceptable standard for emissions, in this case of carbon dioxide, and then to impose restrictions on emitters, in this case coal-fired power plants. The court did not contest these facts. Instead, it ruled that the Clean Air Act does not provide the EPA with sufficient authority to achieve those emissions standards.
Roberts described this conclusion as a defense of congressional authority — an assertion of the primacy of elected officials. But constraining the power of regulatory agencies should not be understood as a shift in the locus of decision-making; rather, it effectively prevents good decisions from being made.
Congress has decided, and with good reason, that regulatory agencies staffed by experts are the best available mechanism for a representative democracy to make decisions in areas of technical complexity. The EPA is the entity that Congress relies upon to figure out how clean the air should be, and how to get there. Asserting that it lacks the power to perform its basic responsibilities is simply sabotage.
It is a telling fact that power producers, in response to market forces, have achieved the shift to cleaner energy that the EPA sought to require in 2015, validating the agency’s assessment of what it could reasonably mandate.
Roberts’ predecessors recognized their own limitations. In the 1984 ruling that formalized the court’s policy of regulatory deference, Justice John Paul Stevens wrote that “judges are not experts in the field and are not part of either political branch of the government.” Both points are important. The court lacks technical expertise and an electoral mandate. Thursday’s decision asserting a more muscular role is thus a blow to both the public interest and democracy.