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Bad for climate change, but likely much worse to come

The Supreme Court 6–3 decision in West Virginia v. EPA on June 30 (the final day of the 2021–22 Term) has been widely described as a significant blow to Biden Administration efforts to reduce greenhouse gas emissions. The rationale central to the Court’s reasoning has also generated considerable consternation about the likelihood other regulations to protect public health and safety will be found beyond the authority of administrative agencies. Understanding what the Court did and didn’t say requires some careful reading and explanation.

An initial issue before the Court was whether the case should have been accepted in the first place. EPA’s climate regulations have a tortured history. Those issued late in the Obama Administration were withdrawn and replaced by much weaker ones under the Trump Administration. An appellate court concluded the latter regulations were invalid and reinstated the Obama plan. The Biden Administration then announced its intention to promulgate a new rule, making the issue moot. The Court nevertheless concluded the case should proceed because “voluntary cessation” does not moot a case. As there was no immediate harm to the parties bringing the case, the decision to review was an early indication that the Court was unusually anxious to review the matter.

The central issue before the Court was whether EPA could allow utilities to comply with requirements for reducing greenhouse gas emissions by switching from generating electricity with fossil fuels (primarily coal) to renewable energy and demand side reduction through energy efficiency. This, the Court said, EPA could not do. EPA’s authority to mandate reductions in carbon emissions, an issue favorably decided by the Court in 2006, was not at issue (although some fear it may be in the future). At least for now, the decision recognizes EPA can regulate greenhouse gases from power plants — so long as based on emission limits without reference to measures outside power plant boundaries.

The effect of this ruling, ironically, is to limit the range of allowable compliance measures in ways likely to increase costs. For this reason, utilities sided with EPA in the litigation. West Virginia and the other parties bringing the case were only interested in preserving the use of coal and making the adoption of alternatives as difficult as possible. (A largely futile objective — coal use by U.S. utilities has been in decline since 2013 due to competition from gas and renewables.) Another potentially ironic result is that limitations on federal authority open possibilities for state regulation — another outcome that would not be welcomed by industry.

The decision removes one tool for climate policy making it more difficult to meet the Biden Administration’s climate goals. However, EPA presumably will adopt more narrowly framed regulations, and the Administration’s “whole of government” approach relying on climate policies across the spectrum of administrative agencies remains in place. Meanwhile the effort to enact increased budgetary support for climate action, perhaps of more immediate consequence, remains in Congressional limbo awaiting a compromise agreement with Senator Manchin.

The rationale behind the decision, as noted, is potentially of much larger and lasting consequence. In a 1984 decision, also involving EPA, the Court held it would defer to an agency’s reasonable choice when interpreting broad statutory language. Ever since, conservatives have complained that the rule gave too much power to unelected bureaucrats. The new conservative majority made clear the age of deference is over. The new rule, based on the “major questions” doctrine, is that if a rule has a significant economic impact it must be specifically authorized by Congress and not a broad mandate to protect public health and the environment. The legal thinking behind this radical change reflects growing hostility toward the expanding role of administrative agencies among conservatives. The effect, Justice Kagan argues in her vigorous dissenting opinion, is to make the Court “instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.” Given the current partisan paralysis in Congress and Senate voting power exercised by states with a minority of the population, the practical effect will be to significantly undermine prospects for future regulations to protect public health and the environment.

Criticism of the decision by environmental law scholars was swift. Harvard law professor Jody Freeman observes the doctrine’s ambiguity invites a flood of challenges to agency rules on similar grounds, e.g., requirements for driverless cars under a 1966 vehicle safety law that was written without them in mind. In his scathing critique, Richard Lazarus, also a Harvard law professor, argues that “under the ironic guise of promoting democracy, the branch of government least accountable to the voters has invented a sweeping doctrine of statutory interpretation” imposing a constitutional straitjacket around efforts to protect the nation’s most pressing public health and environmental problems.

Many good analyses of the opinion have been published and more are forthcoming. One I recommend is from the Bulletin of the Atomic Scientists.

Alan Miller is a former climate change officer in the International Finance Corporation (2003–13) and climate change team leader, Global Environment Facility (1997–2003). Besides other engagements, Alan is an active editor for Climate Conscious submissions on Medium.