Supreme Negligence

Earlier this morning, the US Supreme Court preemptively ruled that the Biden administration cannot enact the Clean Power Plan—or anything else like it that would force a shift away from coal and gas to less carbon-intensive energy sources—without Congress.

You read that correctly: preemptively ruled.

The case the court chose to hear, West Virginia v. Environmental Protection Agency (EPA), involved a policy that had not been implemented, nor replaced with something similar. But just in case the administration was even thinking about it, the Supreme Court decided to weigh in. It’s an unprecedented move, and one that restricts the federal agency tasked with environmental protection from following science. This aversion was further underscored in Justice Elena Kagan’s dissent, which took the case out of the weeds of the particular Clean Air Act section in question and placed it back into reality. The science on climate change is unambiguous; surely now is not the time to quibble about whether or not “clean air” explicitly means maintaining a livable atmosphere?

While nowhere near as sweeping and terrible a ruling some of us were bracing for, the decision—written for the 6-to-3 majority by Chief Justice John Roberts—is still deeply troubling.

First, the “good” news: This ruling does not restrict the EPA from regulating greenhouse gas emissions in general, nor does it restrict the EPA from regulating the emissions of existing power plants. It does not offer a broad advisory on how the Clean Air Act may or may not be used with respect to CO2 emissions (and yes, there are other sections of the Clean Air Act that could apply, more on that in a minute). In one part, Roberts even seems to suggest that the Department of Energy take up the work of shifting power generation, leaving the EPA to handle only emissions.

In general, the ruling focuses rather narrowly on Section 111(d) of the Clean Air Act, and whether it allows the EPA to regulate beyond the fence line of each individual power plant. Roberts also called out the Clean Power Plan as an attempt to create a cap-and-trade system for carbon without Congress explicitly authorizing such a thing. In this court’s opinion, only Congress has that power.

While a lot of folks in the climate space expected this case to overturn the Massachusetts v. EPA verdict, which authorized the EPA to regulate greenhouse gas emissions, Roberts never mentions it. Instead, though, he references something else more chilling: “Under our precedents, this is a major questions case.”

If you’re unfamiliar with it, “major questions” refers to a completely judge-created doctrine that allows Supreme Court justices to weigh in whenever they feel a regulatory agency has done something that has an “extraordinary” impact on economics or politics. It’s the reverse of the “Chevron deference,” another phrase that came up a lot in discussion of this case, which holds that in absence of explicit direction from Congress on how a regulatory agency should interpret and implement a given law, the court should not impose its own interpretation.

Despite the conservative justices supposed allegiance to a “textual” or “originalist” view of the Constitution, their use of “major questions” as an excuse to weigh in on virtually anything is anything but. But what the reference here makes very clear is that the justices plan to keep invoking major questions doctrine in their effort to dismantle the “administrative state,” which includes every federal agency that drafts and enforces regulations based on laws passed by Congress.

The idea from hardcore federalists is that you don’t need agencies when you have state governments ready and willing to interpret and enforce Congress’s will. This is a disastrous approach for most environmental issues: For example, what happens when a power plant in one state dumps coal ash into a water source that’s then carried to another state? Pollution doesn’t observe borders.

So, where does this leave us?

The West Virginia v. EPA ruling is about the least-bad ruling we could have expected, but it’s a harbinger of worse to come, especially once the court sinks its teeth into a case without all the bizarre twists and turns of this one. The Clean Water Act is coming up in the next session.

It’s also important to note that West Virginia v. EPA didn’t come from some poor, cash-strapped coal producer who was worried about how the Clean Power Plan would affect their business; it was a case crafted very strategically by the Republican Attorneys General Association. At the time that the case was filed in 2015, Scott Pruitt was attorney general of Oklahoma and led the Republican Attorney Generals Association or RAGA. He helped coordinate the case, with West Virginia as the lead plaintiff. Then, as Trump’s head of the EPA, he repealed the Clean Power Plan and introduced the idea that it represented a “major question” that ought to be answered by Congress, not a regulatory agency.

RAGA is behind a significant number of the constitutional challenges currently before the court. Funded by various industries that AGs are supposed to, you know, regulate—including the fossil fuel industry—they look for ways to file cases that will help achieve what Leonard Leo, former head of the Federalist Society (the shadowy group picking judges for the GOP over the past 20 years), calls a “structural revolution,” using the courts to return the US to a pre-New-Deal era of deregulation and small government.

Until the court does its worst, the Biden administration and the EPA still have some options.

Even within the Clean Air Act itself, for example, Section 115 requires the EPA to regulate international air pollutants upon receipt of “reports, surveys or studies” from an international agency that indicates that air pollutants emitted in the US could “reasonably be anticipated to endanger public health or welfare in a foreign country.” The Intergovernmental Panel on Climate Change (IPCC) reports and their increasingly urgent warnings would certainly seem to qualify as such.

Outside the Clean Air Act, the Toxic Substances Control Act (TSCA) also provides some options. A petition filed with the EPA earlier this month asked the agency to make a determination about the risk greenhouse gasses pose to human health and the environment, and then to commence rulemaking to mitigate that risk. Unlike the Clean Air Act, TSCA includes very explicit language about the authority it grants to the EPA and could even get around this thorny “major questions” issue.

“This sort of problem is exactly the thing TSCA was designed for,” explains former EPA scientist Donn Viviani, one of the authors of last month’s petition with the EPA. (Climate scientist Dr. James Hansen and climate accountability expert Richard Heede are among the other petitioners.) “Congress knew that there were problems out there that a single program couldn’t handle and that we needed something more expansive. It was designed to take care of things that the other laws weren’t properly taking care of. And if you look back at the history of climate, it’s quite clear that none of the other laws are taking care of this.”

The ruling also removes any doubt as to whom we’re dealing with and confirms that this court will absolutely try to kneecap attempts to address climate change. Which doesn’t mean that we throw up our hands in dismay so much as we prepare for the literal fight of our lives. Sure, if you need to despair for a bit, take that time. But please, come back ready to fight—and vote this November. Because the easiest way to curb the Supreme Court’s power is a Congress that actually passes climate legislation.