SCROTUS

As previously noted, in yesterday's West Virginia v. Environmental Protection Agency ruling, the so-called "Supreme" Court limited the U.S. EPA’s ability to control releases of greenhouse gases from power plants. The court argued that when Congress passed the Clean Air Act in 1970, it did not intend to give the EPA broad authority to issue regulations that would push fossil-fuel producers toward clean energy. 

The trouble is that climate change presents such an enormous threat to the world — and the need to reduce the pace of warming is so urgent — that any ruling that makes the task harder is worrisome. Extreme storms, heat waves, floods, droughts, and wildfires are already becoming more common. Many species are facing potential extinction. Glaciers are melting, and sea levels are rising. 

(If you need any further evidence, Potential Tropical Storm Two is now officially Tropical Storm Bonnie.  On its forecast track, Bonnie will move across the southwestern Caribbean today, and cross southern Nicaragua or northern Costa Rica tonight with maximum sustained winds near 40 mph and even higher gusts.  On Saturday, the storm will emerge over the eastern Pacific, where it is expected to re-strengthen and develop into a full hurricane.)  

(Also, satellite and radar images along with surface observations indicate that a low-pressure system has formed off the coast of  Savannah, Georgia. This system will drift northeastward along the southeast coast during the next day or so, producing heavy rains which could cause flash flooding across portions of southeastern Georgia and the Carolinas through tonight and into Saturday.)

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

The court's ruling is the latest sign that the Republican Party is unconcerned about climate change. The six justices in the majority were all Republican appointees; the three dissenters were all Democratic appointees. It should also be noted that three of the six justices in the majority were appointed by a President (you know, the Orange Guy) who did not win the popular vote, and the timing of the appointments of two of those justices (Gorsuch and Barrett) was controversial. Gorsuch was only appointed after the Republican-led Congress refused to even consider President Obama's nominee for a year on the grounds that a President shouldn't be able to nominate a justice in an election year, and Barrett's appointment was rushed through Congress even as early and absentee voting was already underway to replace the Orange Guy.  Two of the other six justices were appointed by another President who did not win the popular vote in his First Term, but appointed the justices during his Second Term. The sixth and final majority justice was appointed way back in 1991. It's hard to argue that the decisions of the current court are indicative of the will of the people.

Despite the risks associated with climate change, the U.S. has made only modest progress combating the crisis through federal policy in recent years. The Trump administration largely denied the problem and reversed Obama administration policies intended to slow global warming. Because of uniform Republican opposition and Democratic infighting, the Biden administration failed to pass its ambitious climate agenda, including a major proposed rule requiring electric utilities to reduce carbon dioxide emissions, essentially forcing them to replace coal and gas-fired plants with clean forms of electricity, like wind, solar and nuclear power. Now the Supreme Court has made the job even more difficult.

But the court had agreed to hear the West Virginia case despite the fact that the rules being challenged had been abandoned, suggesting they were determined to make a point. That point seems to be to hamstring federal regulation of business. 

The argument at the heart of the decision is called the “nondelegation doctrine,” which says that Congress, which constitutes the legislative branch of the government, cannot delegate legislative authority to the executive branch. Most of the regulatory bodies in our government are housed in the executive branch. So the nondelegation doctrine would hamstring the modern administrative state.

As recently as 2001, the Supreme Court unanimously rejected the nondelegation argument in a decision written by Justice Antonin Scalia, who said the court must trust Congress to take care of its own power. Instead, in the majority ruling, Chief Justice Roberts modified the nondelegation argument with the “major questions doctrine," used by the court for the first time. That doctrine holds that Congress must not delegate “major” issues to an agency, saying that such major issues must be explicitly authorized by Congress. 

Justice Kagan’s dissent noted the hypocrisy of the Republican justices claiming to be constitutional originalists when they are, in fact, inventing new doctrines to achieve the ends they wish. “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. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”

Abuse of the filibuster by Republican senators means that the explicit congressional authorization required by Roberts stands no hope of passing Congress. Thus, the Supreme Court has essentially stopped the federal government from responding as effectively to climate change as it must. This decision made it less likely that the U.S. will reach the climate targets set in the Paris Accords. And if the U.S. misses its targets, the world will likely miss its targets, too.

The decision will likely apply not just to the EPA, but to a whole host of business regulations. More lawsuits may be coming. Many of the plaintiffs from this climate case have brought another case trying to keep the EPA from moving the nation toward a greater use of electric vehicles. Corporations in other industries will likely use this ruling to argue that some of their own regulations should also be blocked. 

The EPA still has some authority to regulate power plants after this ruling, but more narrowly than before. Although one obvious way to significantly reduce greenhouse emissions from power plants is to shut down the plants and replace them with something cleaner, that’s now off the table. But the agency can still push power plants to become more efficient.  The agency can still regulate greenhouse gases from vehicles, the nation’s largest source of such emissions — although the ruling and the potential for future lawsuits may make the agency more cautious than it otherwise would be.

Climate change can still be addressed in other ways, too, including federal rules applying to newly built power plants, federal rules on leaks from oil and gas production, and private sector efforts to become more energy efficient. Cities and states are trying to fill the gap, with local governments accelerating their efforts to cut greenhouse gas emissions, in some cases bridging partisan divides.

In the dissent, Kagan argued that Congress had, in fact, properly given authority to the EPA to act, recognizing that agencies need to be able to respond appropriately to new and big problems. “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 noted that the "Clean Air Act was major legislation, designed to deal with a major public policy issue.” 

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

She concluded, “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.”