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Today the U.S. Supreme Court ruled against the Environmental Protection Agency's (EPA) effort to limit certain power plant emissions, saying the agency "unreasonably" failed to consider the cost of the regulations. (Photo by Mark Wilson/Getty Images)

Supreme Court Takes an Axe to the EPA's Ability to Mitigate the Climate Crisis

The Supreme Court's decision in West Virginia v. EPA imperils evidence-based policymaking.

The Supreme Court took an axe to the federal govern­ment's power to rein in the climate crisis on Thursday, slash­ing its abil­ity to limit danger­ous carbon pollu­tion from power plants. The decision comes on the heels of the latest United Nations report warn­ing of cata­clys­mic damage from climate change, includ­ing mass animal extinc­tions and extraordin­ary levels of human suffer­ing from famine, fires, and floods, if urgent action is not taken.

Restor­ing the EPA's power to compre­hens­ively regu­late power sector carbon emis­sions will require decis­ive congres­sional action.

In West Virginia v. Envir­on­mental Protec­tion Agency, the Court uses an obscure doctrine as an anti-regu­lat­ory tool—one that it has also employed to over­turn Covid-related public health meas­ures in the past year and that it could use to under­mine a sweep­ing range of envir­on­mental, public health, employ­ment, and consumer protec­tions in the near future. The major­ity severs EPA's power even as it acknow­ledges that that the agency's approach could be a "sens­ible solu­tion to the crisis of the day."

The decision is a radical depar­ture from long-estab­lished under­stand­ings of the role of govern­ment, under­min­ing its power to engage in evid­ence-based poli­cy­mak­ing to serve the public interest. To safe­guard the public, Congress must act swiftly to preserve the govern­ment's abil­ity to conduct evid­ence-based poli­cy­mak­ing to respond to complex issues.

The ruling strips the EPA of power to use common­sense and compre­hens­ive means to limit carbon emis­sions from power plants. The Court reached to hear this case when there were seri­ous ques­tions as to whether it had juris­dic­tion to do so, as the regu­la­tion at its heart—the Obama admin­is­tra­tion's Clean Power Plan—never came into effect because the Court blocked it in 2016 pending the resol­u­tion of several lawsuits. After the Trump admin­is­tra­tion tried to imple­ment a more industry-friendly program, the Biden EPA announced last year that it would build a new climate rule on a "clean slate."

The Clean Air Act of 1970 gives EPA broad author­ity and flex­ib­il­ity to address new sources of air pollu­tion and embrace new pollu­tion control tech­niques. But in West Virginia v. EPA, the Court under­cuts that author­ity, invok­ing a novel and ill-defined legal theory—the "major ques­tions doctrine"—that invites judges to inval­id­ate regu­la­tions that have "major" economic and polit­ical signi­fic­ance on the grounds that Congress failed to expli­citly author­ize them.

The Court recently under­mined agen­cies' evid­ence-based policies in two pandemic-era decisions, obliquely rely­ing on the major ques­tions doctrine to strike down the Centers for Disease Control and Preven­tion's evic­tion morator­ium and block the Occu­pa­tional Health and Safety Admin­is­tra­tion's mandate that large employ­ers ensure their work­ers are vaccin­ated or frequently tested for Covid-19. In Thursday's case, the Court embraced the doctrine in a full-blown way, making clear that it views a wide range of agency protec­tions as poten­tial targets for abol­i­tion.  

As has become clear during the pandemic, we need govern­ment entit­ies with deep subject matter expert­ise to craft policy solu­tions informed by science, econom­ics, and tech­nical know­ledge. Indeed, time and again, Congress has created agen­cies with mandates to do just that. While expert-driven policy solu­tions are not infal­lible, and poli­cy­makers often balance scientific find­ings with economic consid­er­a­tions and polit­ical real­ity, evid­ence-based poli­cy­mak­ing is essen­tial to managing a crisis. The compar­at­ively high Covid-19 fatal­ity rates in juris­dic­tions across the coun­try where science has taken a back seat to polit­ics under­score this point. We need evid­ence-based poli­cy­mak­ing to respond to the climate emer­gency just as much as we need it to combat the pandemic. And as the Supreme Court has recog­nized previ­ously, the EPA—not Congress or the courts—has the expert­ise to make the best policy calls based on science and tech­no­logy.

But the Supreme Court's reas­on­ing in this case imper­ils evid­ence-based poli­cy­mak­ing. As Justice Kagan notes in dissent, "The Court appoints itself—instead of Congress or the expert agency—the decision­maker on climate policy. I cannot think of many things more fright­en­ing." In invok­ing the major ques­tions doctrine, the Court holds the Congress of 1970 (when the Clean Air Act was passed) and the Congress of 1990 (when it was amended) to a novel stand­ard that is rigid and abstract. In so doing, the dissent notes, the Court rides rough­shod over the capa­cious and forward-look­ing author­ity those Congresses did grant to the EPA to address envir­on­mental and public health issues, guided by the agency's deep scientific and tech­no­lo­gical subject matter expert­ise.

The decision also exacer­bates the governance crisis in this coun­try. By gutting regu­lat­ory agen­cies' abil­ity to use exist­ing stat­utory author­ity to respond to contem­por­ary soci­etal needs, the Court places the onus on Congress to amend count­less laws to expressly author­ize agen­cies to "make decisions of vast economic and polit­ical signi­fic­ance," whatever that means. The sugges­tion that Congress just needs to pass more expli­cit instruc­tions to agen­cies in order for the govern­ment to perform core func­tions is easier said than done. For his part, Justice Gorsuch in concur­rence, alarm­ingly, raises the specter that any agency action without express congres­sional author­iz­a­tion could be deemed to viol­ate the Consti­tu­tion, a posi­tion the dissent vehe­mently rejects.

In our broken polit­ical system, hampered by the Senate fili­buster, Congress has neither the will nor the in-house expert­ise to update hundreds, if not thou­sands, of laws. And the Supreme Court's juris­pru­dence repeal­ing voting rights protec­tions, sanc­tion­ing partisan gerry­man­der­ing, and gutting campaign finance regu­la­tions contrib­utes to Congress's dysfunc­tion.

What path forward remains for the federal govern­ment to act on climate change? Today's Supreme Court decision does­n't stop the EPA from setting carbon pollu­tion limits and impos­ing tech­no­lo­gical controls at indi­vidual power plants. Other federal agen­cies—includ­ing the Depart­ments of Energy, the Interior, and Agri­cul­ture—also continue to have power to help avert the worst of the climate crisis.

But restor­ing the EPA's power to compre­hens­ively regu­late power sector carbon emis­sions will require decis­ive congres­sional action. For Congress to be up to the task of legis­lat­ing on such tech­nical issues, it would first have to rebuild its own capa­city to engage in evid­ence-based poli­cy­mak­ing. But to fully grapple with contem­por­ary soci­etal needs, Congress needs to increase not only its tech­nical capa­city but also its demo­cratic respons­ive­ness. And over the long term, Congress needs to take mean­ing­ful steps to fix our demo­cracy.


© 2021 Brennan Center for Justice

Mekela Panditharatne

Mekela Panditharatne is an attorney at the Natural Resources Defense Council.

Kinsella_Martha

Martha Kinsella

Martha Kinsella is a senior counsel in the Brennan Center’s Democracy Program, based in the Washington, DC, office. She works on government reform, voting rights, money in politics, government ethics, and regulatory issues.

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