Supreme Court limits EPA’s authority to regulate carbon emissions

How do you feel about the Court’s decision?

Written by Eric Revell, Countable News

What’s the story?

  • The Supreme Court issued a ruling on the final day of its term in West Virginia v. Environmental Protection Agency that held the EPA overstepped the authority delegated to it by Congress when it sought to implement the Clean Power Plan.
  • The case concerned the EPA’s Clean Power Plan rule, which was issued by the Obama administration in 2015 and intended to regulate carbon dioxide emissions from existing coal- and natural gas-fired power plants citing authority under the Clean Air Act. 
  • Under the Clean Power Plan, states would set enforceable rules but the EPA would determine emissions limits they have to comply with by determining the “best system of emission reduction” (or BSER) for the energy source in question. The limit would reflect the amount of pollution reduction achievable using the BSER.
  • The Supreme Court stayed the Clean Power Plan in 2016 and prevented it from taking effect. The rule was repealed by the Trump administration in 2019 when the EPA determined the Clean Power Plan exceeded the authority granted to the agency by Congress. EPA found that the interpretive question raised by the Clean Power Plan fell under the major questions doctrine, which holds that a clear statement from Congress is necessary for a court to conclude Congress intended to delegate authority “of this breadth to regulate a fundamental sector of the economy.”
  • The EPA’s repeal and the reasoning behind it prompted legal challenges against that action and its enactment of a replacement rule, known as the Affordable Clean Energy (ACE) Rule. The District of Columbia Circuit Court of Appeals vacated both the invalidation of the Clean Power Plan and the enactment of the ACE Rule. 
  • The Supreme Court issued a 6-3 decision with Chief Justice John Roberts writing the majority opinion, in which Justice Clarence Thomas, Justice Samuel Alito, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett joined. Justice Elena Kagan filed a dissenting opinion in which Justice Stephen Breyer and Justice Sonia Sotomayor joined.

What did the justices say?

  • The majority opinion authored by Chief Justice John Roberts concluded that Congress didn’t give the EPA the authority to adopt a regulatory scheme of the magnitude of the Clean Power Plan:
“We have no occasion to decide whether the statutory phrase “system of emission reduction” refers exclusively to measures that improve the pollution performance of individual sources, such that all other actions are ineligible to qualify as the BSER. To be sure, it is pertinent to our analysis that EPA has acted consistent. with such a limitation for the first four decades of the statute’s existence. But the only interpretive question before us, and the only one we answer, is more narrow: whether the “best system of emission reduction” identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act. For the reasons given, the answer is no.
Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.”
  • Justice Neil Gorsuch authored a concurring opinion that was joined by Justice Samuel Alito. Gorsuch’s concurrence concluded:
“When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, “[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because today’s decision helps safeguard that foundational constitutional promise, I am pleased to concur.”
“In short, when it comes to delegations, there are good reasons for Congress (within extremely broad limits) to get to call the shots. Congress knows about how government works in ways courts don’t. More specifically, Congress knows what mix of legislative and administrative action conduces to good policy. Courts should be modest.
Today, the Court is not. Section 111, most naturally read, authorizes EPA to develop the Clean Power Plan—in other words, to decide that generation shifting is the “best system of emission reduction” for power plants churning out carbon dioxide. Evaluating systems of emission reduction is what EPA does. And nothing in the rest of the Clean Air Act, or any other statute, suggests that Congress did not mean for the delegation it wrote to go as far as the text says. In rewriting that text, the Court substitutes its own ideas about delegations for Congress’s. And that means the Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.
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 decisionmaker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.”

(Photo Credit: iStock.com / zhongguo)