The Supreme Court Is Jeopardizing Federal Climate Action

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Today, in a ruling on a non-existent plan with non-existent damages to the people who filed the lawsuit, the Supreme Court took the opportunity to curb the ability of the Environmental Protection Agency to regulate carbon emissions from the electricity sector.

In a summer of big U.S. Supreme Court decisions, West Virginia v. Environmental Protection Agency it was one of the rare cases in the record. On the one hand, it was a dispute that didn’t really exist. The complaint concerns the Clean Energy Plan, a set of rules issued by the EPA in 2015 that would have pushed power plants to substantially reduce carbon emissions by 2030. Only the plan never came through. Fossil fuel executives and Republican officials raised the hell out of its possible economic effects, went to court and quickly suspended the rules. A year later, then-President Barack Obama handed over the keys to the EPA to Donald Trump, and the plan disappeared for good.

Thus, environmentalists were shocked and concerned when the Supreme Court decided to pick up a challenge to the plan that had been going through the courts. They were right. Writing for the Conservative majority of six justices, court president John Roberts said the consequences of this policy were too great to be enacted without more explicit authorization from Congress.

This reason did not undermine the EPA as much as some environmental advocates had feared. The decision will still allow the agency to regulate emissions from power plants, albeit more narrowly than before. And the court did not seize the opportunity to undo the precedent that says agencies like the EPA can address carbon emissions broadly. But the decision remains a serious blow, highlighting the court’s skepticism about the ambitious action of federal agencies and offering a possible roadmap for future legal challenges to climate policies. “They say,‘ Today we’re loading the gun, but we won’t point it at anything else yet, ’” says Jay Austin, a senior attorney at the Environmental Law Institute, a nonprofit legal group.

“The Court appoints itself, rather than Congress or the agency of experts, who makes decisions on climate policy,” Judge Elena Kagan wrote in her dissent, to which were added the two other liberal judges. “I can’t think of many more scary things.”

The dispute, filed by a group of red state attorneys general, was based on a part of the Clean Air Act that allowed the agency to establish the “best emission reduction system” at power plants. The matter before the Court was of scope. Perhaps by the “best system” Congress meant that the EPA could require emission reduction technology at specific power plants, as it had done with other pollutants. Or perhaps it was a broader mandate, allowing measures that could lead to the shutdown of a coal plant in favor of producing cleaner energy elsewhere. With the clean energy plan, the EPA opted for more far-reaching interpretation.

But this disagreement hinted at an even bigger legal question: what can government bureaucrats do with the often vague instructions given to them by Congress? Traditionally, there is a certain way of doing things in Washington: elected officials cannot be expected to write down every detail of every policy, nor would they. So this becomes the job of the people in the regulatory agencies who take the outlined laws and translate them into action. In general, judges don’t like to get in the way. According to a doctrine known as “Chevron deference,” in reference to a 1984 Supreme Court decision involving the oil company, judges have repeatedly said it is best to let scientists and policy experts do their job.

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