Climate change and the Supreme Court’s version of police abolitionism
West Virginia v. Environmental Protection Agency, which in June gutted the Biden administration’s ability to reduce the electrical power industry’s carbon emissions, may be the Supreme Court’s most reckless and lawless decision (in an extremely competitive field). The court comes close to anarchism, crippling Congress’s capacity to protect the country from disaster and undermining the fundamental purpose of the Constitution.
Chief Justice John Roberts, writing for the court, embraced a newly bloated version of the “major questions” rule for interpreting statutes, one that Congress could not have known about when it gave the president the power to create environmental regulations: “there are extraordinary cases . . . in which the history and the breadth of authority that the agency has asserted and the economic and political significance of that assertion provide a reason to hesitate before concluding that Congress meant to confer such authority.” The challenged Obama-era plan would have restructured an entire industry, and Roberts declared that there was “little reason to think Congress assigned such decisions to the Agency.”
If you need a reason, how about the plain words of the statute? Section 111 of the Clean Air Act instructs the EPA to select the “best system of emission reduction” for power plants, as part of its mandate to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and “may reasonably be anticipated to endanger public health or welfare.”
Roberts says the court should look to the “history and breadth of the authority” asserted by the agency as well as the “economic and political significance” of the regulation, and then speculate as to whether Congress really “meant to confer such authority.” But the best evidence of what Congress meant is the language it enacted.
“The current Court is textualist only when being so suits it,” wrote Justice Elena Kagan, dissenting. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” (A few months ago, she made the same point about the court’s invalidation of OSHA’s rules to limit COVID-19 in workplaces.) The court’s decision is already being cited in challenges to regulations of pipelines, asbestos, nuclear waste, corporate disclosures and highway planning.
Roberts observes that the EPA has rarely used its Section 111 power. But statutes don’t disappear because they aren’t being used. They remain in effect until they are repealed. Right now, we are seeing antiabortion laws that have been dead for half a century suddenly spring back into life.
Justice Neil Gorsuch, concurring, offers a more specific account of how one decides what counts as a “major question,” explaining that the first question a court should ask is whether “an agency claims the power to resolve a matter of great ‘political significance.’”
How does a court know what gives a matter great political significance? Gorsuch cites “earnest and profound debate across the country” — not at the time of enactment, but decades later. OSHA’s effort to prevent thousands of COVID-19 deaths was improper because it came “at a time when Congress and state legislatures were engaged in robust debates over vaccine mandates.”
I thought I was offering a reductio ad absurdum last January when I wrote that the Supreme Court was making Fox News a source of law. But Gorsuch isn’t even hiding it: If the conservative press raises enough of a fuss to trigger a political fight, then government action that was previously authorized will become illegal.
Congress in the 1970s was under the impression that air pollution and workplace dangers were unquestionably evils, and that creating agencies was the best way to address those threats. The court declared way back in 1819 that Congress has broad discretion to choose the most convenient means for carrying out its powers. Kagan observed: “A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute.”
It knew that scientific knowledge would improve. For instance, now we understand that coal – the leading source of water and air pollution— is the worst fossil fuel: When one accounts for the costs it imposes, every unit that is burned has negative economic value. The EPA aimed to have coal provide 27 percent of the nation’s electricity by 2030, down from 38 percent in 2014.
Most Americans once would have been astounded to learn that anyone would ever try to block efforts to contain a pandemic or prevent environmental catastrophe. The court’s decision reflects the growing influence of libertarianism, which thinks that liberty means a government that is small and weak. Libertarians have been unable to think clearly about environmental harms. That’s why, for all their purported cold rationality, they are drawn to daffy climate change denialism and, more recently, antivaxx ideology. The libertarians’ capture of the Republican Party is so complete that its members will not give President Biden a single vote for his climate plan. Actually, from a libertarian standpoint, the effects of climate change involve clear violations of property rights that the state must remedy: One isn’t permitted to devastate other people’s land.
The slogan “abolish the police,” embraced by some on the left, is foolish because it focuses on government dysfunction while failing to notice what government is for. The court has now embraced its own form of reckless anarchism — and at the worst possible time. In the midst of a deadly plague and worsening climate catastrophe, it has blocked Congress’s ability to choose the tools it deems most effective — and left unclear what Congress or the EPA is now allowed to do to protect the human race from impending disaster.
Gorsuch presumes that an agency exceeds its authority when it “seeks to regulate‘ a significant portion of the American economy,’” or “require ‘billions of dollars in spending’ by private persons or entities.” Both he and Roberts tell us, in effect, that the bigger the problem, the less capacity Congress has to address it by delegation. This is like a weirdly selective form of police abolition that abolishes only the homicide squad or yanks police out of high-crime neighborhoods.
There have always been some Americans who did not like the Constitution, who thought that it created government that was too powerful. In 1788 they almost prevented it from being ratified. Most voters, however, have repeatedly rejected the radical libertarian notion that liberty means a government too feeble to solve the nation’s most urgent problems. They voted that way when the Constitution was adopted, and again when Congress created these agencies. Today’s Supreme Court perversely interprets law as if the Constitution’s opponents had won.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.