What is already dead cannot be resurrected. The Clean Power Plan, an Obama-era initiative to reduce climate pollution from the U.S. power industry that never actually went into force, is not the decision’s main casualty, which is why it is odd that the Supreme Court made a ruling on its legality.
The industry has long already surpassed the Clean Power Plan’s targets for reducing coal consumption due to economic trends. The court essentially used the Clean Power Plan as a zombie to reach a conclusion.
The real devastation in West Virginia v. EPA is how the court unjustly restricted our society’s ability to address a significant issue. This situation may serve as a warning sign for a broader onslaught on regulatory safeguards.
The majority of the court wrote in its decision that the Clean Power Plan went too far by establishing standards based on switching both coal- and gas-fired plants to renewable energy sources, as well as shifting generation away from higher-emitting sources like coal-fired plants, to lower-emitting sources like gas-fired plants.
It is awful news for business and climate action that this economical and effective strategy will no longer be used. In their brief before the court, the power companies themselves justified a generation-shifting method by arguing that it would not be innovative and that it would instead be a usual outcome of regulation of the power industry and how the modern grid functions. Their financial situation as well as the environment would have benefited from this strategy.
The Environmental Protection Agency (EPA) still has the right to restrict greenhouse gas emissions, including those from the electricity industry, notwithstanding this setback. It has lost a crucial tool in its arsenal for defending the environment and the public’s health. However, the battle is far from done.
The “big questions doctrine” is the real threat in this situation. This interpretive framework was developed by judges but, although being called a “doctrine,” it has not been widely applied and is still inadequately defined. In West Virginia v. EPA, the court argued that it would only apply the doctrine in “exceptional” circumstances with “huge economic and political significance” in which an agency made innovative and transformative use of an old statute.
In certain situations, unless Congress expressly stated otherwise, it would imply that an agency lacked jurisdiction. The Clean Power Plan was subsequently described by the court as such an extraordinary situation.
Applying the key questions doctrine more extensively would be challenging since Congress has always legislated against the idea that it can broadly authorize agencies to use their knowledge to solve pressing issues in adaptive ways. For instance, in order to broadly protect the public’s health, Congress drafted the Clean Air Act in 1970.
In her dissenting opinion, Justice Elena Kagan pointed out that Congress understood what it could not yet know. It was left up to the EPA to decide how to maintain clean air, adapt to new technology, and recalibrate based on the most recent scientific findings. It passed the Clean Air Act and numerous other legislation so that regulations would be able to solve today’s and tomorrow’s major issues rather than postpone them.
The risk applies to other regulatory domains, even if West Virginia v. EPA targeted a specific subset of climate change solutions. The court previously applied the key questions doctrine to abolish the early eviction moratorium during the coronavirus pandemic and the mandatory vaccination or test requirement for qualified workers.
Future laws governing the banking system, national security, or any other area could be compromised. The doctrine’s use to abruptly repeal regulations hinders agencies’ ability to perform their duties well and could increase costs and uncertainty for the regulated firms.
Anti-regulatory forces are already urging courts to strike down more regulations, claiming that these too constitute “major problems.” In one particularly egregious case, a group of Republican attorneys general claimed that the Biden administration’s use of the social cost of carbon, a scientific analysis that organizations have used for a decade just to estimate the climatic implications of policies, constitutes a substantial concern.
Larger regulatory issues will result if the lower courts use this approach too broadly and let the exception become the rule. Congress lacks the time and knowledge necessary to fully implement thousands, if not even hundreds, of regulations.
Even broad grants of legislative authority have been difficult to provide in the current political impasse, let alone the more specific delineations of instruction that the court now claims are required when a “serious question” is put forth. The key questions concept may act as a one-way, anti-regulatory ratchet in this situation, causing deadlock to migrate from the legislative to the executive branches.
Before further tearing into federal administration, the court still has the option of ignoring this unsustainable interpretive canon. That outcome appears implausible. It appears that the court chose this case with the goal of advancing the theory. There was no justification for reaching out to decide this case, as Kagan argued in her dissent, other than to issue “what is really an advisory opinion” to impose limitations on the new rule that the EPA is considering because the Clean Power Plan was neither in effect nor in any danger of doing so.
It is obvious that we cannot remain passive and submit to a court that is becoming more and more antagonistic to the idea of regulatory safeguards. The issues of today are too serious for inaction.
At the Institute for Policy Integrity, a nonpartisan think tank devoted to enhancing the caliber of governmental decision-making, Dena Adler conducts research on matters of federal environmental regulation.
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