Just one week after striking down the right to abortion in Dobbs v. Jackson Women’s Health Organization, the US Supreme Court has now severely restricted the government’s ability to fight climate change. I think the Court’s decision in West Virginia v. EPA is deeply troubling for at least three reasons:

1. The fact that the Supreme Court agreed to hear the case at all.
2. The decision reached by the Court.  
3. The way the Court arrived at its decision – using something called the “major questions doctrine” – and its implications for other areas of government.

First, a little background

West Virginia v. EPA is a case about whether the Environmental Protection Agency (EPA) has the authority to regulate greenhouse gas emissions from electrical generating plants. 

Back in 2015, under President Obama, the EPA introduced a new set of rules called the Clean Power Plan that were intended to reduce greenhouse gas emissions from coal- and natural gas-fired power plants. These rules required utilities to shift electricity generation from coal to natural gas, or from coal and natural gas to renewable sources like wind and solar in order to reduce overall CO2 emissions.

The Clean Power Plan never went into effect. West Virginia and several other States and private parties sued the EPA. In 2016 the Supreme Court issued a “stay” order which blocked the rule from coming into effect until the lawsuits could work their way through the lower courts.

The Trump Administration repealed the rule in 2019. The Biden Administration has announced it intends to develop a new rule, which the EPA says should be ready sometime in 2024. Meanwhile, a subsequent lawsuit (I’m skipping over some convoluted procedural details here) eventually made its way up to the Supreme Court which heard the case in February 2022 and decided it on June 30, 2022.  

The Court split 6-3 along ideological lines. Chief Justice John Roberts wrote the opinion of the Court majority. Justice Elena Kagan wrote the dissenting opinion, joined by Justices Stephen Breyer and Sonia Sotomayor. You can find the full text of the opinion here. A few years ago I wrote a primer on how to read Supreme Court opinions which you can find here.

Schrodinger’s Case

The first problem with this case is that the Supreme Court agreed to hear it at all.

Unlike the lower courts, the Supreme Court controls its own workload. It decides which cases it will hear and which it will not. It takes 5 justices to decide a case, but only 4 votes are needed to hear a case. 

However, the Court usually requires that there must be a “live controversy” or a real dispute among the parties. The US Supreme Court does not issue theoretical, or so-called “advisory” opinions in the absence of a real, live case. 

This isn’t true everywhere. For example, in Canada, where I grew up, the government can ask the Supreme Court of Canada (SCC) what is known as a reference question like, “Hey, we’re thinking about passing a law that does X. If we did that, would it be valid under the Canadian Constitution?” The SCC will then issue a non-binding advisory opinion. 

Well, SCOTUS doesn’t do this, and by the time the Court heard the case, the Clean Power Plan had been repealed and the government had announced it was working on a new rule. Wasn’t the case dead?

The majority argued that it was still possible for the government’s new rule to resemble or the old one, or to repeat the alleged harm caused by the old one. Therefore, the cat case was still alive.

In dissent, Justice Elena Kagan accused the majority of issuing an advisory opinion. More importantly, I think, she pointed out that “there was no reason to reach out to decide this case.” In other words, the Court (or at least 4 justices) chose to hear the case when it did not need to.

Why? Surely, there were other cases they could have heard.

I’ll get to this in a minute.

But first, note that the Court just agreed to hear a case called Moore v. Harper later this year which will test a legal theory that State legislatures have unlimited power to regulate federal elections without any restrictions imposed by State courts or State constitutions. See an NPR summary here. This case has absolutely terrifying implications for US democracy, but at least 4 justices think it deserves to be considered.   

You can see how the cases chosen by the Supreme Court reveal a lot about what the justices are thinking and where they are heading. In West Virginia v. EPA, I think the Republican-appointed justices wanted the chance to roll back EPA regulations by rolling out the “major questions doctrine.”

Outside the Fence

A majority of the Supreme Court decided that the EPA lacked the authority under the Clean Air Act to regulate greenhouse gas emissions as proposed under the Clean Power Plan.

The specific details of the regulation are highly technical and incredibly soporific, so I’ll just summarize them here.

Historically the EPA has regulated pollutants coming from power plants by requiring plants to generate electricity more cleanly, for example, by installing scrubbers or other technology. These are sometimes called “inside the fence” regulations because they govern how a power plant operates.

By contrast, the Clean Power Plan required power plants to reduce their CO2 emissions either by reducing the amount of electricity they generate using coal or natural gas, or by investing in wind or solar generation, or by purchasing carbon credits under a cap-and-trade scheme. These were “outside the fence” regulations intended to cause a system-wide or grid-wide shift towards lower-emission electricity generation.

The majority said that while shifting the nation’s electricity generation away from coal may be “sensible,” the EPA did not have explicit authority from Congress to impose these kinds of systemic or “outside the fence” regulations. The dissent responded that Congress had in fact given the EPA such a wide grant of authority and that it was indeed empowered to address “the most pressing environmental challenge of our time.”

Basically the difference between them boils down to a disagreement over the definition of a single word: “system.” The Clean Air Act commands the EPA to determine the “best system for emission reduction.” The majority interpret “system” narrowly while the dissent takes a broader view. Kagan chides the supposed textualists in the majority for ignoring the plain meaning of the word.

It’s horrifying that the fate of the planet rests on such arcane definitional quarrels.

Major Questions

The most troubling part of this case is the legal theory used by the majority to justify their decision. It’s called the “major questions doctrine.”

I’ll explain what this is in a moment, but first, please bear with me for another stupefyingly dull excursion, this time into administrative law. 

You see, under the US Constitution, the people elect Congress, and Congress enacts laws. Laws are usually written in broad general terms and Congress then delegates the authority to administer those laws to agencies such as the EPA. Agencies interpret the laws and develop specific rules and procedures that give effect to the legislation.

Congress does this because a) it knows it does not have the experience or expertise to get into the details of specific problems, and b) it also knows it cannot quickly adapt to new developments, conditions and needs. So it gives agencies, staffed with experts, the authority, flexibility and discretion to do these things within the broad limits set out in legislation. 

In short, power flows from the people to Congress and from Congress to government agencies.

As our society has become more complex over the last 50 to 100 years, more agencies have been created and the overall size of government has increased. This has led to the rise of what some call the “administrative state.”

Still awake?  Great!

Until fairly recently, the Courts have generally respected agency interpretations of the laws they administer.  The Courts, like Congress, used to recognize that they lacked the relevant expertise to pass judgement about the implementation details devised by government agencies.

The major questions doctrine challenges this deference to agencies.

The idea is that on major questions, that is, questions of “vast economic or political significance,” the Courts should “hesitate” before deferring to agency interpretations of statutes. On major questions, the Court’s new reasoning goes, Congress should speak clearly and specifically if it wishes to grant authority to government agencies.

If Congress had meant for some agency to do some really big thing, it would have said so explicitly in legislation. In the absence of an explicit grant of authority, the theory goes, the Courts should assume that no such authority exists. 

In West Virginia v. EPA, the Supreme Court decided that the issue of system-wide shifting of electrical generation to low-emission sources was a major question and it found no explicit grant of authority for such a plan in the Clean Air Act.

Major Questions About Major Questions

I’ll admit I have some sympathy for the majority in this case.

We don’t want government agencies straying out of their lanes. To take an absurd example, we wouldn’t want the EPA making rules about prescription drugs. Nor should agencies blatantly over-reach the authority Congress gave them through unjustifiably broad interpretations of their governing statutes.  For example, some years ago the Courts blocked the Food and Drug Administration’s (FDA) attempt to regulate tobacco products, in part because no one thinks of tobacco as a pharmaceutical.

But in this case, no one disputes that the EPA has authority to regulate CO2 emissions. And the Clean Power Plan is clearly in the EPA’s lane.

So the major questions doctrine is thin ice on which to base such a momentous decision.

This so-called doctrine is not part of the Constitution or any law. The Courts, or rather some justices, have just invented it, made shit up. Quite recently. In fact, West Virginia v. EPA is the first Supreme Court opinion to actually use the term “major question.”

And guess who decides what is a “major question?” The Courts, of course. They have granted themselves the authority to determine when an ordinary issue crosses the line and becomes a major question. But to date the Supreme Court has not set out any clear or explicit definition of what constitutes a major question.

The Court expects Congress to speak clearly and explicitly about major questions, but they have not done so themselves. The hypocrisy is galling.

OK, I know this all sounds like a bunch of obscure legal gymnastics, and it is. Why does it matter?

First, in this specific case, the Supreme Court bas sharply restricted what the Biden and successive Administration, through the EPA, can do to reduce greenhouse gas emissions from power plants which account for about 25% of the nation’s CO2 emissions. As Justice Kagan concludes:

“The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.” [Dissent, pp. 32-33]

The Court has also given no guidance about what kinds of regulations might be permissible in future. This guarantees future litigation.

More worrisome is that this decision is a harbinger of things to come. In the same way the Supreme Court’s decision last week in Dobbs v. Jackson Women’s Health Organization striking down the right to abortion threatens other rights such as the rights to contraception, consensual private sexual relations, and same sex marriage, now this case threatens the ability of administrative agencies in all corners of government to do their jobs. (I wrote about the Dobbs decision here.)

These justices know what they’re doing. They have a plan. They want to dismantle the administrative state, roll back government about 80 years to its pre-New Deal size and influence, and hobble the federal government’s capacity to act.

Expect legal challenges, most likely from big business, to regulations across many sectors of the economy over the next few years. Expect the Supreme Court to roll them back.

In years to come, the food you eat, the products you buy and the drugs you take will be less safe, your financial institutions will be less trustworthy, the air you breathe and water you drink will be more polluted.

The Supreme Court has just put itself in charge of US climate policy. It clearly intends to do the same thing in many other areas.

We should stop calling this a “conservative” court. This is the most radical, ideological and activist Supreme Court we have seen in generations.

Justice Ketanji Brown Jackson

I do want to highlight one very positive development at the Supreme Court this week: Ketanji Brown Jackson was sworn in as the first Black female Justice of the Supreme Court, replacing the retiring Stephen Breyer.

Thanks for reading.

Related Links

West Virginia v. EPA
Full text of the Supreme Court’s opinion. June 30, 2022.

The Supreme Court’s “Major Questions” Doctrine: Background and Recent Developments
An excellent overview prepared by the Congressional Research Service, a non-partisan group serving congressional committees and Members of Congress. May 17, 2022.

Just how bad is the Supreme Court’s EPA decision?
Episode of the Strict Scrutiny podcast. June 30, 2022.

Supreme Court restricts the EPA’s authority to mandate carbon emissions reductions
Report by Nina Totenberg on NPR, June 30, 2022.

Supreme Court curtails EPA’s authority to fight climate change
Report by Amy Howe on SCOTUSBlog, June 30, 2022.

Supreme Court Has Taken Control of Climate Policy
Report by Noah Feldman in The Washington Post, June 30, 2022.

The Supreme Court appears eager to gut the EPA, but can’t figure out how to do it
Background on West Virginia v. EPA by Ian Millhiser on Vox. February 28, 2022.