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Thursday, February 29, 2024

The Supreme Court Is Jeopardizing Federal Climate Action

Today, in a ruling on a nonexistent plan with nonexistent harms to the people who brought the suit, the Supreme Court took an opportunity to curb the ability of the Environmental Protection Agency to regulate the power sector’s carbon emissions. 

In a summer of big decisions from the US Supreme Court, West Virginia v. Environmental Protection Agency was one of the stranger cases on the docket. For one thing, it concerned a dispute that didn’t really exist. The complaint was about the Clean Power Plan, a set of rules issued by the EPA in 2015 that would have pushed power plants to substantially cut carbon emissions by 2030. Only the plan never panned out. Fossil fuel executives and Republican officials raised hell about its potential economic effects, went to court, and quickly got the rules suspended. A year later, then-president Barack Obama handed Donald Trump the keys to the EPA, and the plan was gone for good.

So environmental advocates were shocked and concerned when the Supreme Court decided to pick up a challenge to the plan that had been winding through the courts. Those fears were not without grounds. Writing for the six-justice conservative majority, Chief Justice John Roberts said the consequences of such a policy were too large for it to be enacted without more explicit authorization from Congress.

That rationale doesn’t undermine the EPA as much as some environmental advocates had feared. The decision will still allow the agency to regulate power plant emissions, though more narrowly than before. And the court didn’t take the opportunity to unwind the precedent that says agencies like the EPA can tackle carbon emissions broadly. But the decision remains a serious blow, highlighting the court’s skepticism of ambitious action from federal agencies and offering a potential roadmap for future legal challenges to climate policies. “They’re saying, ‘We’re loading the gun today, but we’re not going to point it at anything else just yet,’” says Jay Austin, a senior attorney at the Environmental Law Institute, a nonprofit legal group.

“The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy,” Justice Elena Kagan wrote in her dissent, which was joined by the two other liberal justices. “I cannot think of many things more frightening.”

The dispute, brought by a group of red-state attorneys general, hinged on a part of the Clean Air Act that allowed the agency to set the “best system of emission reduction” at power plants. The question before the Court was one of scope. Perhaps by “best system” Congress meant the EPA could require emissions-cutting technology at specific power plants, as it had for other pollutants. Or maybe it was a broader mandate, allowing measures that might result in powering down a coal-fired plant in favor of producing cleaner energy somewhere else. With the Clean Power Plan, the EPA opted for the more far-reaching interpretation.

But that disagreement hinted at an even bigger legal question: What can government bureaucrats do with the often vague instructions Congress gives them? Traditionally, there’s a certain way things go in Washington: Elected officials can’t be expected to scrawl out every detail of every policy, nor would they want to. So that becomes the job of folks at regulatory agencies who take the sketched-out laws and translate them into action. Judges typically don’t like to get in the way of that. Under a doctrine known as “Chevron deference,” referring to a 1984 Supreme Court decision involving the oil company, the justices have repeatedly said that it’s best to let the scientists and policy experts do their jobs.

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Conservative legal scholars have recently argued that some policy questions are too important for deference to apply. Acting on these so-called “major questions” requires explicit instructions from Congress, they say—that the government must “speak clearly,” as former justice Antonin Scalia put it. Now, what is a “major question” exactly? “That’s the question,” says Lisa Heinzerling, an expert in environmental law at Georgetown University Law Center. The definition seems to be up to the justices. “You could look through the US legal code and see a major question every few pages,” she says. In West Virginia, the focus doesn’t seem to be on the major questions posed by climate change itself—despite massive consequences for human health and well-being, including those from more severe natural disasters. It’s that specific actions for fighting climate change could be bad for some businesses that fall under EPA regulations.

And so the “major questions” issue has been hanging over federal climate policy “like the sword of Damocles,” Heinzerling says. Today, that sword fell over the part that involves regulating power sector emissions. As in a handful of other cases this term, in West Virginia the majority declined to mention Chevron deference when they could have and instead opted to expand on the definition of “major questions.” That wasn’t terribly surprising. Going into the case, the Supreme Court had already signaled its intentions through rulings that curbed actions taken by federal agencies during the Covid-19 pandemic, like the federal moratorium on evictions and vaccine requirements for businesses with more than 100 employees.

Relying on more explicit instructions from the legislature is a recipe for climate inaction. “If Congress wants to ‘speak clearly,’ they can. But when was the last time that Congress spoke clearly about anything?” Austin says. Nor is the legislature particularly well equipped to write out the highly technical details of environmental policy—to do the job, in other words, of trained regulators and scientists. There’s a reason the wonks are wonks, especially when it gets into the gritty science of curbing emissions.

The decision comes at a time when the US, the world’s biggest historical emitter of carbon, is already slipping behind on its promises to cut back on emissions, in large part due to congressional gridlock. (Remember Build Back Better?) That’s why the EPA is stuck doing its best to stretch laws like the Clean Air Act to address the pressing needs of today. Today’s ruling invites the question of whether other agencies might be overstepping their bounds by treading upon “major questions,” whatever those may be. The real question is where the courts will point this newly loaded gun, Austin says. That might include proposed Securities and Exchange Commission rules on climate risk disclosures that serve its statutory mission of “protecting investors,” or rules that target tailpipe emissions or factor climate change into approvals of oil and gas pipelines.

“Even a narrow reading is a warning to other agencies,” says Jody Freeman, founding director of Harvard Law School’s Environmental Law and Policy Program. “It will be important for agencies to look at their statutes and find as explicit a rationale as they can. They’ll need to be able to convince a court.”

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The silver lining, according to Freeman, is that the Biden administration has likely anticipated a ruling that would hem in what it can do to regulate the power sector. It’s still possible to make a dent in emissions with beefier, if narrower, rules. And there are parts of the Clean Air Act governing other pollutants, like mercury and particulate matter, that can have the side effect of cutting carbon. Some of the slack will also be taken up by states, which can set their own power plant standards and incentivize building renewables. That dynamic was on display during the Trump administration, when government officials watered down federal tailpipe emissions rules but automakers continued to build to strict standards set by California, despite challenges from the federal government over the state-issued rules.

Conservative groups have celebrated the decision as a defeat of executive overreach. “This is about maintaining the separation of powers, not climate change,” West Virginia attorney general Patrick Morrisey said in a statement. “Today, the Court made the correct decision to rein in the EPA, an unelected bureaucracy.”

Yet many businesses preferred the bureaucrats. The federal government had gained support from power companies that wanted the relative clarity of EPA regulation over environmental rules set by an unpredictable Congress. In a separate brief supporting the EPA, a group of corporations led by Apple highlighted the limits of aggressive private efforts to fight climate change and the need for nimble federal agencies. The Supreme Court may have chipped away power over climate action from what it sees as a bloated Washington bureaucracy. But now those decisions will be mired deeper in a different kind of swamp: the federal court system. “Let’s say the obvious,” Kagan wrote in her dissent. “The stakes are high.”

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