Myths, Partial truths, and Some Fresh Perspectives
In this room — this bureaucratic tedious room — the fate of the whole planet is decided. (From an article in The Atlantic describing an appellate court hearing on a challenge to EPA climate change regulations — an issue now before the Supreme Court.)
The lengthy list of challenges to effective climate change action may soon have yet another powerful addition — the U.S. Supreme Court. While the legal issues can be complicated, the bottom line is simple: a pending decision in a case argued in February, West Virginia v. EPA, is widely expected to narrow EPA’s authority to regulate greenhouse gas emissions. Even worse, Court watchers expect the case will be used to give greater weight to a new test making it more difficult for government agencies to protect public health and safety
What’s the issue? Congress has never given EPA specific authority to regulate greenhouse gas emissions. However, in a 5–4 decision in 2007, Massachusetts v. EPA, the Supreme Court concluded EPA was obligated to do so under the broad language of the Clean Air Act which mandates the agency regulate “any air pollutant” that can “reasonably be anticipated to endanger public health or welfare.” Writing for the Court majority, Justice Stevens noted that while Congress had not addressed climate change, the Act’s definition of air pollutant was “sweeping,” “unambiguous,” and “capacious.
A victory celebration in anticipation of climate change action proved premature. In the fifteen years that followed, EPA concluded after a rule-making in 2009 that carbon dioxide and other greenhouse gases threatened public health and could be regulated. But final regulations have never become effective due to changing administrations and legal challenges. In a rare exception to standard practice, the Supreme Court agreed to hear a challenge brought by West Virginia and other red states and coal companies despite the absence of a final rule. (For those interested, the complex history of the regulations and court challenges is described in multiple sources online, including articles in Vox, a Cornell Law School post, Inside Climate News, and a Wikipedia entry.)
The issue currently before the Supreme Court is the legality of EPA’s interpretation of its authority under the Clean Air Act. The law authorizes EPA to set standards for “stationary sources” such as power plants based on the “best system of emission reduction.” In aiming to give utilities the flexibility to reduce emissions as cheaply as possible, EPA issued regulations (now formally put on hold by the Biden Administration) that allowed achieving required reductions outside power plant boundaries. For example, a utility could propose to reduce emissions by purchasing wind and solar power from independent power producers, increasingly a less expensive alternative to operating coal burning power plants with pollution controls. You might think utilities would want this flexibility and you’d be right — they have sided with EPA against West Virginia, a state with substantial coal interests.
Why would the Supreme Court, be against allowing EPA this flexibility? A brief recap of legal history is necessary. Another significant legal decision involving EPA, also written by Justice Stevens and decided in 1984, concluded that when Congress has not specifically addressed the issue being litigated, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” As noted earlier, in the case brought by Massachusetts and decided in 2007, Stevens concluded that the law was clear and thus EPA’s refusal to regulate greenhouse gas emissions illegal.
The increasingly ideologically conservative Supreme Court has shown itself hostile toward this expansive view of what agencies can do in the absence of specific Congressional authorization. As the legal scholar Cass Sunstein notes, “Conservatives are increasingly drawn to the view, going back to the 1930s, . . .that there is something seriously wrong with a situation in which major policy decisions are made by agencies instead of by Congress.” An alternative approach advanced in two recent Supreme Court decisions (including one overruling the OSHA rule requiring vaccination or testing in workplaces employing at least 100 people) is being called the “major questions” doctrine. The Justices supporting this view believe Congress should “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Or as Justice Scalia wrote in more colorful language in a 2001 decision, Congress does not “hide elephants in mouseholes.” If not, the Court will find the agency lacks the authority to issue the rule. Court watchers expect a decision based on this new approach in favor of West Virginia. The logic as applied to climate change is simple: it is a major question, therefore elected officials and not administrative agencies should address it.
The problem with the new test, as Georgetown law professor Lisa Heinzerling notes, is two-fold. First, the test is subjective insofar as agencies will have to speculate which decisions trigger the test. Or as legal scholars have noted, “One judge’s mouse is another judge’s elephant, and it ever will be so.” Second, the test is skewed in one direction and considers costs but not benefits. “[I]f they find major consequences for regulated entities, they do not pause to reflect on the major consequences for the public if a regulation falls.” At a time when partisanship has made passing even laws to protect public health from the pandemic almost impossible, the consequences not only for climate change but for environmental regulation writ large may be dire.
What will the immediate consequence be for EPA climate regulations? A decision in favor of West Virginia would leave EPA free to issue regulations based on other, less flexible provisions of the Clean Air Act. However, as the Court is showing itself increasingly free to ignore precedent, there is the very real possibility of yet another legal challenge seeking to reverse the decision in Massachusetts v. EPA. It also appears that the days of coal burning power plants in the U.S. and around the world are numbered as solar and wind power is now proving cheaper. But a Supreme Court that makes it more difficult to address climate change is doing a great disservice to all of us — and the planet.
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)