The Supreme Court strikes again

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The Supreme Court on Thursday continued longstanding efforts by the Conservative majority to stifle the federal government’s ability to protect public health and welfare, by voting to restrict the Environmental Protection Agency’s ability to regulate carbon pollution that warms the planet.

Judgment has fallen West Virginia vs. EPA, a case brought by a group of Republican attorneys general who claimed the Obama-era clean energy plan exceeded the agency’s power to reduce pollution from the electric power sector. Writing for the majority of six justices, Chief Justice John Roberts agreed and concluded that “it is implausible that Congress gave the EPA the power to enact” regulations to displace utilities from coal-fired power plants to renewable and cleaner energy.

This is the immediate bad news of the West Virginia vs. EPA decision, and that’s bad enough. With this decision, the federal government lost one of the most effective tools to significantly reduce carbon pollution from existing power plants.

“This ruling gives coal executives and far-right politicians exactly what they’ve been asking for, frustrating the EPA’s efforts to set tough and effective power plant carbon pollution standards that would help protect our communities and our families,” said Andres Restrepo, senior attorney for the Sierra Club’s environmental law program. “To address the worst effects of climate change, we need to go much further and much faster. This is why today’s decision is a real setback.

The good news, however, is that the court did not go so far as to completely override the EPA’s power to regulate greenhouse gas emissions, as some feared. The agency retains the ability — and the legal obligation — to implement power plant-specific controls on carbon pollution, regulate methane emissions from oil and gas equipment, and reduce exhaust emissions from cars and trucks, among others. “This [decision] confirms that the EPA has the authority to set standards for electricity emissions from coal and gas-fired power plants,” said NRDC attorney David Doniger. “It’s an important authority, and we’ll be pushing for the EPA to use that authority to set new standards.”

David Bookbinder, a veteran environmental lawyer who is chief counsel at the Niskanen Center, a center-right think tank, described the rulings as “the narrowest possible bad thing they could have done.”

David Bookbinder, a veteran environmental lawyer, described the rulings as “the narrowest possible bad thing they could have done”.

But Bookbinder, along with other environmental lawyers and Supreme Court observers, also expressed deep concern about how Chief Justice Roberts’ decision dealt with what is called “the issue doctrine.” major”. This doctrine covers how – or even if – executive agencies like the EPA are able to make regulations that may have significant social or economic implications for the country as a whole. Over the past year, the major issues doctrine has been cited in decisions to overturn COVID vaccine mandates and rules requiring masks on planes, and it was also central to Roberts’ logic in the EPA case.

“So yeah, that’s a problem,” Bookbinder said. “The majority said, ‘If we decide something is a big and important issue, we will read the authority of the agency closely.’ ”

Write on Twitter, Jody Freeman, professor at Harvard Law School stated that “the court’s adoption of the major issues doctrine [is] sinister.”

The three minority judges had harsh words about the majority’s invocation of this relatively recent doctrine. In her dissent, Judge Elena Kagan said the court wrongly intruded on a matter that could just as well have been dealt with by Congress and the EPA, to which it had delegated some of its authority. “The majority wins today. . . legislative choice. In doing so, it deprives the EPA of the power needed – and the power granted – to reduce greenhouse gas emissions.

Kagan concluded, “Today, the Court is blocking action by the congressionally authorized agency to reduce carbon dioxide emissions from power plants. The Court names itself, instead of Congress or the expert agency, the climate policy maker. I can’t think of many scarier things.

Kagan’s dissent underscores what, in the long run, will likely be the most troubling aspect of the court’s decision in West Virginia vs. EPA. The conservative supermajority isn’t just limiting the EPA’s ability to address climate change, what Kagan calls “the most pressing environmental challenge of our time.” Elevating the idea of ​​the “major issues doctrine,” the conservative justices also invite challenges to a wide range of federal regulations that could include everything from food safety rules to consumer protections meant to protect people from financial fraud. .

The ruling “will embolden opponents of agency regulation to challenge any agency action they don’t like and claim it’s a major issue,” Sierra Club’s Restrepo said. “Safeguards much needed to protect public health and welfare will be held hostage to whether this is a ‘major issue.’”

“It’s really, really big,” said Karen Sokol, a professor at Loyola University New Orleans College of Law. In his analysis, Roberts’ opinion performs a rhetorical “sleight of hand”. He insists it’s a “narrow” decision centered on an interpretation of a subsection of the Clean Air Act. But by relying so heavily on the major issues doctrine, it is actually a possibly landmark decision that extends the court’s authority. “It’s the court that wraps itself in humility when in reality it’s the court that makes politics here.”

Such judicial activism is likely to impede progress on a range of pressing issues. Congress, after all, is virtually paralyzed; it can barely pass new laws, let alone forward-looking laws that delegate specific powers to executive agencies. Absent such explicit delegation of powers, some federal courts — now filled with conservative Trump appointees — are likely to use the major questions standard to overturn all sorts of public interest laws. Today’s decision is therefore a model of federal government inaction.

For the conservative movement, this has always been the plan. The majority opinion in the case of the EPA is the latest victory in a 50-year effort to dismantle what conservatives call “the administrative state” – what most people simply consider modern, efficient government. The effort began in the early 1970s with the so-called “Powell Memo”, in which future Supreme Court Justice Lewis Powell argued that to protect American capitalism from “widespread attack”, the interests of companies needed to increase their influence on the judicial system. Over the next few decades, a network of free-market fundamentalist organizations like the Federalist Society, the Koch brothers-funded Competitive Enterprise Institute, and the Republican Attorneys General Association put this plan into action. Today, the federal court system is more hostile to federal oversight of industry than at any time since the New Deal reforms of the 1930s.

By establishing the major issues doctrine as a new standard for the constitutionality of executive rulemaking, the Supreme Court has given “a gigantic gift to the industry,” Sokol said. “Every agency regulation that makes sense – that protects public health and safety – could raise a major question. It hampers agencies and empowers industry. »

This triumphant industry, of course, is exactly the one that funded organizations like the Federalist Society that brought in the Conservative judges. “We just have the power of law behind the power of business,” Sokol said.

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