Why the Supreme Court climate decision is a canary in the coal mine
You cannot kill what is already dead. So, while it is puzzling that the Supreme Court issued a decision on the unlawfulness of the Clean Power Plan — an Obama-era policy to cut climate pollution from the U.S. power sector that never actually took effect — that regulation is not the decision’s primary casualty. Economic trends drove industry to surpass the Clean Power Plan’s goals to burn less coal years ago. The Clean Power Plan was merely a zombie that the court raised to issue a decision.
The real wrecking ball in West Virginia v. EPA is how the court unnecessarily tied our societal hands from most effectively tackling a major problem. This case could be a canary in the coal mine for a wider attack on regulatory safeguards.
In its decision, the court’s majority penned a self-described narrow holding that the Clean Power Plan went too far by setting standards based on shifting generation from coal-fired plants to lower-emitting sources like gas-fired plants and on shifting both coal- and gas-fired plants to renewables. The loss of this cost-effective and efficient approach is bad news for climate action and for business. Power companies themselves defended a generation-shifting approach in their brief before the court, explaining it would not be novel, but is in fact how the modern grid operates and a typical end result of power sector regulation. This approach would have been a win for their bottom line — and the planet.
Despite this setback, Environmental Protection Agency (EPA) still retains the authority to limit greenhouse gas emissions, including from the power sector. It has lost a valuable weapon in its arsenal to protect public health and the environment. But the fight is far from over.
The true specter in the case is the “major questions doctrine.” Despite being dubbed a “doctrine,” this judicially created interpretive framework was, until recently, little-used, and it remains poorly defined. In West Virginia v. EPA, the court maintained that it would use the doctrine only in “extraordinary” situations involving “vast economic and political significance” where an agency used a long-existing statute in a new and transformative way. In those cases, it would infer an agency lacked authority unless Congress spelled it out precisely. The court then characterized the Clean Power Plan as such an exceptional case.
Applying the major questions doctrine more widely would prove problematic because Congress has legislated for decades against a countervailing assumption — that it can broadly authorize agencies to use their expertise to address critical problems in adaptive ways. For example, Congress wrote the Clean Air Act of 1970 to broadly protect public health. As Justice Elena Kagan noted in her dissent, Congress recognized what it could not yet know. It left it to EPA to determine how to keep the air clean, flexibly leverage emerging technology and recalibrate based on the latest science. It passed the Clean Air Act, and many other laws, so that regulations could address the big problems of the day and of tomorrow — not punt on them.
While a subset of climate change solutions occupied the crosshairs of West Virginia v. EPA, the risk extends to other areas of regulation. Previously, the court used the major questions doctrine to end the eviction moratorium early on in the coronavirus pandemic and vaccine-or-test mandate for eligible workers. Future regulations for national security, the financial system or any other sector could potentially fall prey. Use of the doctrine to unpredictably scrap regulation not only hobbles agencies from doing their jobs effectively, but it may mean higher costs and more uncertainty for regulated entities.
Anti-regulatory interests are already pressing courts to put other policies on the chopping block, arguing that they too qualify as “major questions.” In a particularly egregious instance, a coalition of Republican attorneys general argued that the Biden administration’s use of the social cost of carbon — a scientific assessment that agencies have relied on for a dozen years merely to value the climate impacts of policies — qualifies as a major question.
Should the lower courts apply this framework more expansively, causing the exception to swallow the rule, larger regulatory problems will follow. Congress doesn’t have the time or expertise to fill in all the gaps for thousands — or even hundreds — of regulations. In the current political stalemate, issuing even broad grants of statutory authority has proved challenging, let alone the more detailed delineations of instruction that the court now says are needed when a “major question” is presented. In this environment, the major questions doctrine could serve as a one-way, anti-regulatory ratchet, spreading gridlock from the legislative branch to the executive.
If it wishes, the court can still sideline this unworkable interpretive canon before it blasts more holes in federal governance. That result seems unlikely. The court appears to have taken this case with an eye toward expanding the doctrine. As Kagan explained in her dissent, given that the Clean Power Plan was not in effect, or in any danger of returning, “there was no reason to reach out to decide this case” other than to issue “what is really an advisory opinion” to put constraints on the new rule that EPA is considering.
Absent judicial restraint, agencies can make applying the major questions doctrine an uphill climb by continuing to use their authority thoughtfully and identifying precedents for their actions. Congress could also help mitigate the damage by passing comprehensive, meaningful laws, including for climate action, that explicitly note an expectation for agencies to exercise their expertise to fill in the gaps. Finally, voters can go to the polls to elect representatives who will counter the doctrine’s influence.
What is clear is that we cannot sit on our hands in acquiescence to a court that is increasingly hostile to the very concept of regulatory safeguards. Today’s problems are too major to do nothing.
Dena Adler is a research scholar working on issues of federal environmental regulation at the New York University School of Law’s Institute for Policy Integrity, a non-partisan think tank dedicated to improving the quality of governmental decision-making.