The Supreme Court’s landmark climate decision is expected to reverberate far beyond the walls of EPA — and possibly all the way up to Capitol Hill.
A number of legal observers say the justices’ 6-3 ruling last month in West Virginia v. EPA — which provides a first look at how the court’s new conservative supermajority will handle climate cases — clips agency authority and, perhaps more significantly, constrains how lawmakers can address planet-warming emissions.
“The most dangerous aspect of the court’s decision is the court’s seizure of power from Congress, not from the agency,” Georgetown University law professor Lisa Heinzerling said at a recent Georgetown Climate Center event. “Under the opinion, Congress may no longer enlist an agency’s help in addressing major issues — as it has done throughout U.S. history — unless it speaks clearly enough for a hostile Supreme Court to hear it.”
Heinzerling, who worked at EPA under former President Barack Obama, and other environmental attorneys said the court’s opinion in West Virginia creates a supremely high barrier for Congress, which has never passed substantial climate legislation.
Of particular concern is the court’s conclusion that EPA violated the “major questions” doctrine when it finalized a sweeping regulation in 2015 to curb greenhouse gas emissions from power plants (Greenwire, June 30).
The doctrine states that Congress has to clearly delegate power for an agency to act on “major” rules that are politically and economically significant. EPA — the court’s conservative majority held — had failed that test in the Clean Power Plan by creating a regulation requiring existing power plants to shift from fossil fuel-based energy to renewables.
In writing the regulation, the Obama-era EPA relied on a rarely used section of the 1970 Clean Air Act, and environmental attorneys said the Supreme Court’s rejection of that approach poses a dilemma for federal agencies looking to address emerging problems.
“The court repeatedly says that Congress has to be more clear and more specific, but the problem there is that agencies often need flexibility, so you don’t want to have very particularized language,” Georgetown law professor William Buzbee said at the climate center event. “To pass laws, compromise is often needed, and sometimes broader language is a way for Congress to pass laws. So the decision hamstrings agencies and actually makes it harder for Congress.”
Other legal experts said the ruling’s effects on Congress and agencies may not be as dire as some suggest.
If courts limit application of the major questions doctrine to circumstances where agencies regulate under laws in unexpected ways that diverge from their prior approaches, then the ruling wouldn’t have far-reaching implications, said Dan Farber, faculty director of the University of California, Berkeley’s Center for Law, Energy and the Environment.
In the West Virginia decision, for example, the court took issue with EPA crafting a systemic regulation for power plant emissions under what Farber called a “very obscure” provision of the Clean Air Act — Section 111(d).
“It does mean that when some big new issue comes up, Congress may need to step back in when they prefer not to,” said Farber.
“But if the court really can keep it limited to what [Chief Justice John] Roberts calls ‘extraordinary cases,’ then that’s not as significant for Congress or for interpreting old statutes, although it’s still problematic,” he added.
Jeff Holmstead, a partner at Bracewell LLP, also said the West Virginia opinion is not nearly so sweeping.
“I have a hard time believing this is somehow an attack on congressional authority,” Holmstead said at an event with the think tank Resources for the Future.
The former EPA air administrator under former President George W. Bush added that he would be “happy to draft legislative language that I’m quite confident would pass the test.”
Instead of a warning to members of Congress that they need to explicitly detail what agencies can do, Holmstead said the climate case “seems like a commonsense canon of statutory construction.”
He added: “If an agency is going to do something that seems well outside what they’ve typically done under a provision, the court would say, ‘Gee, let’s make sure Congress clearly established that you have that authority,’ rather than relying on a very creative interpretation of language.”
Still, Holmstead said he expects the West Virginia opinion to have a significant effect on President Joe Biden’s efforts to address climate through what the administration has called a “whole of government” approach, which involves every federal agency playing a role.
“I think the court may be skeptical of the Securities and Exchange Commission wading into climate change issues, of Health and Human Services wading into climate change issues,” Holmstead said (Climatewire, July 7).
U.S. legislators — depending on their political party — either celebrated or criticized the effect of the Supreme Court’s climate ruling on EPA and lawmakers.
Sen. Sheldon Whitehouse, a Rhode Island Democrat and member of the Senate Judiciary Committee, told E&E News that Congress has “repeatedly granted the EPA broad authority to do its job. This is by design.”
Whitehouse, who had submitted a friend of the court brief in support of EPA in the West Virginia case, added that regulators at the agency need “significant flexibility to regulate new pollutants and keep up with the rapid pace of industrial and technological innovation.”
In a Senate floor speech this week, Whitehouse charged that the major questions doctrine became a guiding principle in the decision because the Supreme Court’s conservative majority is captive to special interests, including fossil fuel companies that want to limit regulations, along with think tanks that craft conservative legal theories.
“A court captured by polluter interests will find any way it can to import polluter doctrine, cooked up in polluter-funded doctrine factories, into the law of the land,” Whitehouse said. “And that’s just what they just did in West Virginia v. EPA. Mission accomplished.”
Republicans, though, hailed the opinion.
Sen. Shelley Moore Capito (R-W.Va.), the ranking Republican on the Senate Environment and Public Works Committee that oversees EPA, said the court has not constrained Congress’ authority.
“If anything, reining in the executive strengthens Congress’s hand,” she told E&E News. “Congress decides when agencies can act, and agencies do not have authority to fill in perceived gaps. That is as it should be, as Congress is the most politically accountable branch.”
Buzbee and others said Congress needs flexibility, but Capito said, “There is a difference between flexibility and clarity. The Supreme Court says that Congress has to speak clearly when authorizing an agency to regulate something of vast economic and political significance.”
Sen. Kevin Cramer, a North Dakota Republican who signed an amicus brief in the case arguing that Congress had not given EPA authority to broadly regulate emissions at power plants, said in an essay last week in the Harvard Journal of Law & Public Policy that the case is an example of the “lazy legislating” he has warned against (Climatewire, Dec. 21, 2021).
“Federal overreach, combined with statutory language ripe for bureaucratic mischief, landed the EPA before the Supreme Court,” Cramer wrote in his essay. “While the Clean Air Act could have been written better, it is clear Congress never intended to overrule state authority.”
Cramer, a member of the Senate Environment and Public Works Committee, argued further that “ambiguity in lawmaking from Congress has paved the way for regulatory whiplash, which only serves to embolden unelected bureaucrats in the swamp of Washington, D.C.”
Some legal experts warned that the Supreme Court’s West Virginia ruling is a striking departure from what has traditionally been the judiciary’s role interpreting existing statutes to determine what Congress meant.
In his majority opinion, Roberts framed the ruling as defending the separation of powers between the branches of government.
But the Supreme Court’s decision “has nothing to do with protecting congressional authority,” said David Driesen, a law professor at Syracuse University.
The majority’s ruling didn’t reference the Clean Air Act’s goals of protecting public health and welfare, he noted.
“The court is supposed to enforce the law that’s on the books, even if it’s old, until Congress decides to change it,” said Driesen. “It abandoned that principle.”
Kevin Poloncarz, a partner at the firm Covington & Burling LLP who represented the power sector on behalf of EPA in West Virginia, also noted during a recent Environmental Law Institute webinar that the majority opinion lacked focus on the text of the Clean Air Act.
“We thought what we were talking about was the language of the text and what is a plausible interpretation of the text,” Poloncarz said. “What the majority’s opinion says is it really doesn’t matter what a plausible interpretation is in these extraordinary cases.”
Going forward, the ruling also ties the hands of lawmakers who typically draft legislation in broad terms to give agencies greater flexibility to address issues that Congress could not anticipate at the time the law was finalized, said Driesen of Syracuse.
“They can’t protect themselves from the whims of future courts,” he said. ” In terms of the [ruling’s] effect on regulation, generally, it’s way beyond the power sector.”
West Virginia is “saying the courts can do anything they want anytime they don’t like the result,” Driesen added.
Matt Leopold, who served as EPA general counsel during the Trump administration, said the court puts the onus on Congress.
“I think all would agree that Congress should probably be legislating more in the environmental area than it has been able to. It knows how to,” Leopold, now a partner at Hunton Andrews Kurth LLP, said during the Environmental Law Institute event. “Clearly, when it wants to design a cap-and-trade program, it can do so. The court actually pointed to attempts to do that in the past that have failed. But Congress is going to have to take more of a leadership role to make progress on certain issues.”
Yet environmental attorneys said the ruling makes it more difficult to secure court-proof legislation. And Heinzerling of Georgetown said the decision delivers a final death blow to the Chevron doctrine, an administrative law principle that says courts should give federal agencies like EPA leeway to interpret ambiguous statutes like the Clean Air Act.
“I think it is done, and we’ve all been complicit in it because nobody wants to mention Chevron because it’s like climate denialism. We’re all conscripted in: ‘We cannot mention Chevron because that will kill our case,’“ Heinzerling said. “It’s dead. The Supreme Court just hasn’t officially issued a death certificate.”
Yet Kirti Datla, director of strategic legal advocacy at Earthjustice, said at the Georgetown event that although she believes it’s unlikely the Supreme Court will cite the Chevron doctrine, “as someone who reads most of the courts of appeals opinions on administrative law and environmental law, I do think the doctrine is still alive in the courts of appeals and particularly in the lower courts.”
Datla added that “without psychoanalyzing the justices,” they may be reluctant to overrule the doctrine entirely to allow for “stability in the interpretation of regulations and statutes in the lower courts.”
The West Virginia majority’s explicit focus on the major questions doctrine also raised concerns about whether the justices are poised to cut even deeper into Congress’ ability to delegate power to federal agencies — a move that at least two of the court’s conservative members appeared prepared to make.
In a concurring opinion, Justice Neil Gorsuch said that the major questions doctrine applied to this case because Congress didn’t clearly delegate authority for EPA to “do big things on climate,” said Poloncarz of Covington.
Gorsuch’s interpretation links the major questions doctrine with another long-dormant theory — known as the nondelegation doctrine — that Congress cannot pass off its legislative authority to agencies. Gorsuch wrote that courts should be skeptical of an agency when there is a mismatch between its action and its “congressionally assigned mission and expertise” (Greenwire, April 11).
In the case of the Clean Power Plan, he said, EPA did not have specific authority to transform the U.S. electric power supply.
“When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands,” Gorsuch wrote in his concurrence. “But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”
Court watchers had feared the justices would resort to the nondelegation doctrine to find that Congress had given too much discretion to EPA, in violation of the Constitution, said Farber. He said those concerns have ebbed since West Virginia was decided.
“It looks like Gorsuch maybe doesn’t have as much support on the court for creating that constitutional doctrine,” he said.
Only Justice Samuel Alito joined Gorsuch’s concurrence, which described when an agency action may trigger the doctrine.
“I see a lot of problems with it,” Farber said of the Supreme Court’s major questions ruling. “But I don’t think it’s as dire a threat, if I’m right, that it’s a relatively narrow doctrine.”
Heinzerling of Georgetown, however, said she takes “zero comfort” that only Alito joined Gorsuch because she thinks the majority nevertheless agrees with the concurring opinion.
She noted what she called “a tell” in Roberts’ majority opinion: He did not cite his own decision in another significant major questions case, King v. Burwell, which in 2015 upheld the Affordable Care Act’s tax subsidies.
“In that case, he left the power of the agency in place,” Heinzerling said. “That case gave Congress power that West Virginia declines to give to Congress and seems a telling clue about this decision’s impact on Congress.”
Justice Elena Kagan in her dissent noted that Congress often writes imprecise language to account for unforeseen circumstances.
“A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems,” she wrote. “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise.”
Kagan warned that the majority opinion in West Virginia would usurp the power of the legislative branch.
“The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy,” she wrote. “I cannot think of many things more frightening.”
Reporter Pamela King contributed.
This article also appears in Energywire.