Supreme Court Justice Elena Kagan is warning that the court’s decision last week in a highly anticipated environmental case could have a chilling effect on the ability of government agencies to protect the public from the effects of climate change. But some other critics of the ruling say the Environmental Protection Agency still has plenty of tools at its disposal.
The court decided 6-3, last week that the EPA had gone too far in its Clean Power Plan rule, which ironically had never actually gone into effect, by regulating outside the fenceline of coal-fired power plants to set up the “best system of emission reduction,” as specified in the Clean Air Act.
“The court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions,” Kagan wrote in dissent. “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.”
Despite that stark analysis, it’s not exactly clear how much of an impact the court’s decision ultimately will have on environmental and other laws. Critics of the court’s decision said the case never should have been considered in the first place, since the Clean Power Plan had not taken effect, and the Biden administration is currently working on a new set of rules.
And some groups said the decision was being wrongly portrayed as prohibiting EPA from regulating greenhouses gases at all. The Environmental Integrity Project’s executive director, Eric Schaeffer, said the decision “does not prohibit EPA from regulating carbon emissions from coal plants, as some media have reported. The majority on the Supreme Court recognizes EPA’s right to do so by establishing emission limits that are imposed directly on power plants, which could be based on fuel switching, efficiency improvements or other technologies.”
Perhaps most striking, the court used what it called the “major questions doctrine” as a jumping-off point for the case. Justice Neil Gorsuch, in a concurring opinion, said that under the terms of that doctrine, “administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance,’”
Clear authorization for the CPP did not exist, the majority said, in the first case in which the phrase “major questions doctrine” played such a prominent role. Kagan said the majority opinion “announces the arrival of the ‘major questions doctrine,’ which replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules.”
But whether it’s used to take up other issues seems to be up in the air.
“The answer is — we'll see,” said Howard Learner, the Environmental Law & Policy Center's president and executive director “Whether it's cabined off in the way the Chief Justice Roberts seems to be trying to do in his majority opinion, or whether it's used far more aggressively to stall, delay, and otherwise reverse regulatory actions by not just EPA but other regulatory agencies.”
“It's obviously not good news. I'm not going to try to dress it up,” he said.
“What went from being kind of like, you know, a rogue doctrine … appears to be fairly cemented in the court’s jurisprudence with this decision,” said Jason Rylander, a senior attorney at the Center for Biological Diversity.
“Every regulation is going to come down to like a case by case basis – like, how closely does it hew to clear statutory language?” Rylander said. “Unfortunately, I think that's fairly debatable. Especially when you have a court that that seems increasingly skeptical of agency action, things that might have passed muster, even under the major questions test under a different court, might not under this court.”
One big case being watched by the ag community and environmental groups – and which has attracted plenty of briefs on both sides – is Sackett v. EPA, which the court took up to examine whether the 9th U.S. Circuit Court of Appeals had used the proper test to determine whether wetlands on an Idaho couple’s land qualified as “waters of the U.S.” under the Clean Water Act.
The case “really has to do with the rules that have been in place for nearly 50 years about what the scope of waters of United States means,” ELPC senior attorney Scott Strand said. “And that's what defines the scope of federal jurisdiction. The betting line is that there are at least five members of the court that are going to adopt a much, much more restrictive definition of that.”
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Mary-Thomas Hart, environmental counsel at the National Cattlemen’s Beef Association, said, however, that it’s not clear how far the court will want to go. She says Chief Justice John Roberts likes to try to have the court issues rulings that are as narrow as possible.
“It will be interesting to see if they try to expand a Sackett opinion to cover any of the [WOTUS] administrative rules that we've seen, because I think that a hallmark of the Roberts Supreme Court, or at least for Roberts himself, is that he tries to keep the opinions as narrow as possible," she said.
She added that “there may be a little more tendency with the current makeup of the bench to kind of expand opinions beyond the narrowest means possible. But I think Roberts really tries to keep decisions, especially administrative law decisions, narrow in nature.”
But Rylander says there’s nothing stopping the court from using its new doctrine to delve broadly into federal regulations when it determines they would have a major impact on society.
“All federal regulations are at risk of being viewed through this major questions lens,” he says. “And that looks an awful lot like policymaking or policy preferences, depending on which side you come out.”
Jim Matheson, CEO of the National Rural Electric Cooperative Association, which along with numerous members filed a brief supporting the coal plants and states that petitioned for review, said the decision “resets the agency to its appropriate regulatory path, requiring it to set achievable emissions guidelines that can be accomplished at existing power plants while also allowing states to consider local factors and have the final say on compliance options.
Lawmakers traditionally opposed to what they view as overly prescriptive regulations, especially from EPA, hailed the decision. Rep. Rick Crawford, R-Ark., for example, said the decision means that EPA, “and ultimately other agencies, will have their wings clipped, returning power to the American people through their elected representatives, and away from unelected bureaucrats. “Today’s news is also a big win for our economy and for agriculture in America, as the EPA has been among the worst offenders of usurping congressional authority.”
Ag groups have called on EPA to halt a current rulemaking that EPA and the Army Corps of Engineers say will return WOTUS regulations to their pre-2015 scope, arguing that the agencies will simply have to go back and rewrite the regs once the court issues its Sackett decision.
The agencies, however, have said they are moving forward. The latest semiannual regulatory agenda estimates that the agencies will have a final rule next month, two months before the court’s Oct. 3 arguments.
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