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.
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 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.
