Supreme Court uses invented doctrine to limit climate regulation

The Supreme Court has just dealt a blow to those struggling to avoid the worst impacts of climate change.

In a 6-3 decision in West Virginia vs. EPA, the court’s conservative supermajority ruled that the U.S. Environmental Protection Agency lacked the authority to pass a policy that would have set emissions limits based on the reality that power companies are displacing the power generation from fossil fuels to cleaner sources. Why? Because the Court says that even though Congress gave the EPA broad authority to tackle air pollution in the Clean Air Act, the law simply wasn’t clear enough for the Court.

This reasoning marks a major departure from the traditional deference to federal agencies for how they administer policy. It poses a broader threat to other federal policies that the courts may find too broad, such as vaccination mandates and other public health policies.

How did we come here?

  • It all started when the Obama administration released its Clean Power Plan to reduce greenhouse gas emissions from the electricity sector. When deciding how to reduce emissions, he took into account that power companies were shutting down coal-fired power plants and turning on renewable energy generation instead.
  • The Supreme Court immediately intervened and suspended this regulation.
  • Then, when the Trump administration’s far less effective regulation was struck down in court, red state attorneys general and the fossil fuel industry asked the Supreme Court to intervene again, arguing that the EPA did not have the authority under the Clean Air Act to regulate carbon emissions from coal-fired power plants by changing the way electricity was generated.
  • Neither emissions policy is in effect. Yet the Court chose to take the case anyway.

What did the Court do?

  • The Supreme Court sided with the coal companies and their allies, limiting the EPA’s ability to set effective standards to address climate pollution from power plants.
  • He ruled that the EPA can not take into account that the most effective way to combat greenhouse gas emissions from power plants is to switch to energy sources that produce fewer or no emissions.
  • It did so by applying a new doctrine that it enshrined in case law, the “major issues doctrine”. So now, if a court thinks an agency is trying to do too much – tackling a big problem or trying a new strategy – it will put its thumbs up against the agency when asking if its regulation is legal.

why is it important:

  • The electricity sector is a major source of greenhouse gas emissions.
  • The federal government plays a critical role in addressing climate pollution and will need a broad and robust set of tools to prevent the worst impacts of climate change.
  • Today’s ruling limits the tools the EPA can meaningfully use without providing clarity on what would be acceptable policy under current law.
  • The “big questions” legal doctrine was primarily designed to serve those who want to limit the federal government’s power to regulate industry. Now it can be used in future cases by judges to overrule any policy they feel is “going too far” without any real test of when it applies. This puts federal authority and agency power in a very precarious position.

What happens next:

  • Climate change is not at our doorstep, it is inside the house sitting on our couch. Global greenhouse gas emissions must be reduced by 50% by 2030 to prevent the worst effects of climate change.
  • The federal government still has tools at its disposal to spur the shift to clean renewable energy and mitigate fossil fuel pollution in the meantime.
  • It is up to all of us to demand the strongest possible policies to reduce climate emissions, make the necessary investments to protect the communities most affected by the burning of fossil fuels, and build community resilience.

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