In a decision that will rein in agency power across the federal government, the U.S. Supreme Court ruled today that Congress did not clearly authorize the EPA to adopt broad rules to reduce greenhouse gas emissions from electric utility power plants.
Specifically, the high court held, “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.”
By a vote of 6 to 3, today, in a 31 page opinion by Chief Justice Roberts, the majority found the U.S. Court of Appeals for the District of Columbia was wrong when it interpreted the Clean Air Act as giving the EPA expansive power over greenhouse gas emissions. The judgment of that lower court was reversed and the case remanded. Justice Gorsuch filed a concurring opinion, in which Justice Alito joined. Justice Kagan filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.
The practical effect of this ruling will be both to hamper the Biden Administration’s efforts to combat climate change without Congressional support and also to bring under control the authority of federal agencies across the executive branch.
The Court’s legal rationale is clear in that Roberts wrote that the EPA’s effort to regulate greenhouse gases by making industry wide changes violated the widely accepted “major questions” doctrine, which holds that if Congress wants to give an administrative agency the power to make “decisions of vast economic and political significance,” it must say so clearly,”.. given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims in issues of such magnitude.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts penned. But only Congress, or a federal government agency with express authority from Congress, can adopt a “decision of such magnitude and consequence.”
The Chief Justice’s loud and powerful embrace of the major questions doctrine will be heard far beyond this one instance of regulatory overreach. His rationale, in order to promote democratic accountability and preserve our constitutional structure including avoiding entangling the judiciary in political questions, applies to any major policymaking effort by federal government agencies.
Buttressing that reasoning, in the concurring opinion that was joined by Justice Samuel Alito, Justice Neil Gorsuch emphasized that the dispute before the court involved “basic questions about self-government, equality, fair notice, federalism, and the separation of powers.” Gorsuch wrote the major questions doctrine “seeks to protect against ‘unintentional, oblique, or otherwise unlikely’ intrusions on these interests” by requiring federal agencies to have “clear congressional authorization” when they address important issues. Whether coal and gas fired power plants “should be allowed to operate is a question on which people today may disagree, but it is a question everyone can agree is vitally important.”
Another legal axiom both in the majority opinion and concurring opinion was that the Court disfavors a government agency finding new authority in old laws, in this instance EPA arguing it found dormant regulatory authority in the 1970 Clean Air Act.
This case is much more than a question about whether EPA had authority to curb greenhouse gas emissions from power plants, few thought there was any chance the Supreme Court would support that agency power grab when Congress would not go there, but this decision will have impact well beyond climate change when it makes clear the limits on the authority of all federal government regulatory agencies when Congress refuses to act, .. consider for example the proposed SEC regulations in ESG mandating greenhouse disclosures.
And for those that might quickly see this as an anti climate change court decision, if they read the opinion they will see that the Supreme Court did not, as some had speculated it might, widely limit EPA’s ability to regulate greenhouse gas emissions, but rather confined this decision to EPA’s power plant regulations under each the Obama and Trump Administrations, neither regulation currently being in effect. Moreover, many might decide that Congress is the bad actor here, for failing to enact greenhouse gas emission legislation, not the Court.
If you have not previously read a Supreme Court decision, this may be a good one. The entire decision is here.
The lead case is West Virginia v. EPA. It is consolidated with North American Coal Corp. v. EPA, Westmoreland Mining Holdings v. EPA, and North Dakota v. EPA