The Supreme Court on Thursday drastically limited the Environmental Protection Agency’s ability to regulate greenhouse gas emissions from power plants under the Clean Air Act, in a major blow to President Joe Biden’s climate agenda.
“A decision of such magnitude and consequence rests with Congress itself,” Chief Justice John Roberts wrote in the majority opinion. The 6-3 verdict bars the agency from issuing rules governing emissions from the energy sector as a whole, arguing that Congress did not clearly give the EPA the authority to do so.
The decision leaves open the possibility that the EPA could impose emissions controls on individual power plants, rather than enacting sweeping regulations to encourage the use of clean energy sources.
The court’s liberal justices wrote in their dissent that the decision leaves the nation’s lead environmental agency unable to adequately respond to climate change, “the most pressing environmental challenge of our time.”
“The court sort of doubles down and then some in strengthening an interpretive skew against agency power if Congress has not conferred that power with great clarity,” said William Buzbee, a professor at the Georgetown University Law Center. The decision hobbles the EPA’s power to regulate power plants, as well as other agencies’ abilities to regulate any industry in a broad or new way, he said.
The court did not wholly strip the EPA of the power to regulate greenhouse gases as some environmentalists and legal scholars had feared would happen, he added.
The verdict comes days after the court overturned long-standing precedents related to guns and abortion, including the nearly 50-year-old Roe v. Wade ruling — driven by the new 6-3 conservative majority. All three of these major decisions have broken down along party lines.
It also arrives at a time when the effects of climate change are intensifying in the United States and around the world — and scientists are warning that only major emissions cuts in the next few years can help stave off catastrophic climate impacts. Summer is only a few weeks old, and already the U.S. has grappled with deadly heat waves, an ongoing drought in the West, and devastating and historic floods in Yellowstone National Park.
Increasing hostility toward agency action
The roots of the current case trace back 15 years to the Supreme Court’s historic 2007 ruling in Massachusetts v. EPA, which established the agency’s ability to set limits on greenhouse gas emissions under the Clean Air Act.
That ruling has enabled most of the limited progress the U.S. has made in the last decade-and-a-half on climate change. But from the start, it has been the subject of legal challenges from the fossil fuel-producing states and industry.
The Supreme Court issued a stay in 2015 preventing the Clean Power Plan, the Obama administration’s attempt to regulate power plant emissions, from taking effect. When President Donald Trump took office in early 2017, his administration killed the policy and issued its own, more industry-friendly rule — which itself has been vacated by the courts. The Biden administration has not issued its own version of a power plant rule.
The new ruling rests on what is known as the “major questions doctrine” — that if Congress intended agencies to make sweeping, economywide changes via regulation, the relevant legislation must say so specifically and clearly.
Roberts’ opinion suggests that the court’s recently strengthened conservative majority is skeptical of agencies’ regulatory power more generally and would welcome cases that allow it to flesh out that legal philosophy.
“It strengthens this, frankly, judge-empowering doctrine,” said Buzbee. In an era of congressional gridlock, the decision leaves it to the court to decide whether agencies haven’t overstepped these bounds.
“The invocation of this major questions doctrine is a signal of increasing hostility toward agency action that we’re seeing in multiple cases, whether it’s OSHA rules or covid guidelines from [the Centers for Disease Control and Prevention],” said Jason Rylander, an attorney with the Center for Biological Diversity. “It’s a pretty pro-corporate, anti-regulatory decision.”
By contrast, the liberal justices’ dissent — written by Justice Elena Kagan — argues that Congress built flexibility into the Clean Air Act by design, knowing that to do otherwise would quickly render the law out of date.
Relying on a broken Congress
Rylander said it was easy to see the majority’s call for congressional action on climate as a cynical one, given its past failures to address the problem the court called for the EPA to address in 2007, and the recent, high-profile failure of a major renewable energy incentives bill. Resistance to the latter centered on Sen. Joe Manchin of West Virginia, a Democrat whose family business is in the coal industry.
“The fact is that, for all of our history, Congress has always delegated the details of implementation to federal agencies that, by design, have the scientific and policy expertise to set these kinds of standards,” said Rylander. “It’s hard to imagine how Congress would do that. They don’t have the greatest scientific capability, even if they weren’t gridlocked.”
Massachusetts v. EPA, the 2007 climate change ruling, remains a matter of settled law after Thursday’s decision, said Victor Flatt, a professor at the University of Houston Law Center. But how the EPA interprets Thursday’s ruling to limit power plant carbon emissions now is an open question.
The decision does seem to leave some wiggle room for the agency to implement limited trading of power plant emissions — coal swapped for natural gas or solar or wind, first envisioned by the agency during the Obama administration — but to a more limited extent. The rising cost of coal compared with natural gas and renewable energy is already shuttering coal plants, making some of these decisions for utilities.
“In the end, the decision sends enough signals that states and polluters, once they’re subject to a cap on pollution, will still have flexible strategies to comply. That will be very important to the power industry,” said Buzbee.
This article has been updated. Thanks to Lillian Barkley for copy editing.