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OPINION: Major Blow to the Fight Against Climate Change

July 1, 2022

Yesterday, the Supreme Court cut off the EPA’s authority to regulate greenhouse gas emissions.  The case, West Virginia v. Environmental Protection Agency, considered whether the Clean Air Act gave the EPA the authority to cap emissions from power plants.  By a 6 to 3 vote, the Court held that the EPA did not have “clear congressional authorization” to do so.   West Virginia v. Environmental Protection Agency, 597 U.S. ______, No. 20-1530, (2022).  The decision also limited the regulatory power generally, changing the longstanding framework of Congressionally authorized administrative agencies.

The case stemmed from a 2015 Obama administration EPA rule, the Clean Power Plan, which was promulgated pursuant to Section 111 of the Clean Air Act.  It issued the Clean Power Plan to tackle climate change by requiring reductions of carbon dioxide emissions from electricity generation by 32%.  It was challenged by several states and coal industry companies.  Coal is the nation’s largest source of carbon emissions.

Chief Justice Roberts determined that the EPA did not have the power to regulate emissions:

“Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.”   West Virginia v. Environmental Protection Agency, 597 U.S. ______, No. 20-1530, (2022).

Administrative agencies, like the EPA, are given authority by Congress through Congressional Acts, like the Clean Air Act (passed back in 1963).  The agency then has power to create new rules, based on the authority Congress gave it.

For years, administrative agencies could interpret an ambiguous Congressional statute and create new rules to fix new problems.  The Obama Administration, in interpreting the Clean Air Act determined that it had authority to address the problem of climate change and carbon emissions because part Section 111(d) granted the EPA the authority to identify “the best system of emission reductions” from power generating plants or other large sources, and work with states to implement those systems.  The statute was “ambiguous,” meaning that an agency’s interpretation of the statute is given deference by the Supreme Court.  This concept of deference to agencies was part of the separation of powers framework – if Congress gave power to the agency to execute an Act, then as long as the agency does not deviate from the Act, it should be given deference.

Chief Justice Roberts, however, articulated a new idea: that even if a statute is ambiguous, neither the EPA nor any other agency may adopt rules that are “transformational” to the economy unless Congress has specifically authorized it.

The Chief Justice concluded:

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 Elena Kagan, writing for the dissent, said that this opinion constitutes a huge deviation from a century of administrative law.  She says the Court “does not have a clue about how to address climate change . . . yet it appoints itself, instead of congress or the expert agency . . . the decision-maker on climate policy.  I cannot think of many things more frightening.”

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