For GOP, Supreme Court Case on Climate Goes Way Beyond the Environment

Greg Stohr and Jennifer A. Dlouhy
Sun., February 27, 2022



(Bloomberg) -- A U.S. Supreme Court argument Monday has the potential to give conservatives a new lever to slash the power of federal regulatory agencies with ramifications that reach far beyond the environmental issues at hand.

Coal-mining companies and Republican-led states are seeking sharp limits on the Environmental Protection Agency’s authority to reduce greenhouse-gas emissions from power plants. That would jeopardize President Joe Biden’s pledge to halve those emissions by the end of the decade.

More broadly, the case could produce a defining moment for the movement to rein in the so-called administrative state, a project some legal conservatives say is as vital as overturning the Roe v. Wade abortion-rights ruling. They say unaccountable regulators are usurping a role the Constitution entrusts to Congress.

“This is really about a fundamental question of who decides the major issues of the day,” said West Virginia Attorney General Patrick Morrisey, who is leading the effort to curb the EPA. “Should it be unelected bureaucrats, or should it be the people’s representatives in Congress?”

The result could be weakened environmental regulations, reduced consumer-safety and anti-fraud protections and less flexibility for presidents to address future pandemics and other crises. With Congress all but paralyzed amid partisan discord, supporters of administrative agencies say they are the government’s only tool for addressing the nation’s biggest problems.

“People who aren’t all that interested in environmental issues -- people who are concerned about vaccine mandates or other issues of the administrative state -- are laser-focused on this case,” said James W. Coleman, a Southern Methodist University law professor. “These are huge questions for the entire administrative state, not just for environmental law, even though the climate questions themselves are big, blockbuster ones.”

Thwarting Biden

The case involves two controversial legal doctrines that have gained new prominence at the court with the arrival of three Donald Trump appointees -- and have already played a role in thwarting Biden’s agenda.

The non-delegation doctrine says the Constitution limits Congress in handing off its legislative responsibilities. The major-questions doctrine, meanwhile, insists on clear authorization from Congress before letting an agency exercise broad powers.

Both doctrines lurked near the surface when the court lifted the Biden administration’s moratorium on evictions during the pandemic and blocked plans to require vaccines or regular tests for 84 million workers.

In the eviction case last year, the court alluded to the major-questions doctrine, saying that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

The court used that language again in January when it said Congress didn’t authorize the Occupational Safety and Health Administration’s shot-or-test rule.

In a separate opinion, Justice Neil Gorsuch added for three conservative justices that “if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”

First Congress

Critics say both doctrines are judicial inventions, found nowhere in the Constitution and impossible to square with the country’s history. University of Michigan law professor Julian Davis Mortenson argued in a brief filed in the case that in 1789 and 1790 the First Congress delegated broad policy making authority, covering such areas as patent rights, taxes, refinancing the national debt and raising armies.

“These delegations routinely granted vast discretion to resolve major policy questions with little or no guidance,” Mortenson said.

The case centers on a Clean Air Act provision requiring the EPA to identify the “best system of emission reduction” for existing pollution sources. The law then tasks states to implement plans that reflect those findings.

Coal companies and Republican-led states say the EPA’s authority stops at the fence-line of power plants, an approach that could limit the agency to modest emission cuts at the sites themselves.

They are asking the court to preemptively bar anything resembling former President Barack Obama’s Clean Power Plan, which pushed states to shift electricity generation from coal-burning plants toward lower-emitting options, such as renewable power. The Supreme Court blocked the Clean Power Plan in 2016, and it never took effect.

‘Preemptive Shush’

The Biden administration, power companies and environmental groups say the Clean Air Act allows broader emissions-control measures, such as cap-and-trade systems. They point to Supreme Court precedents that say Congress can delegate policy making provided an “intelligible principle” guides the agency.

The court’s agreement to hear the state and coal-company appeals suggests an eagerness to constrain the EPA. The justices brushed aside objections that their involvement was premature given that the Biden administration hasn’t issued its own power-plant rule yet. A ruling against the EPA could also block its new limits on automobile emissions, which aim to encourage electric vehicles.

“The Supreme Court seems to be in a mood to give EPA a preemptive shush,” Michael McKenna, a GOP energy strategist and former White House official, said in a note to clients. “That’s probably a bad sign for the agencies.”