Guest Post By Kenneth Foard McCallion
Environmental lawyer and author speaks on the recent Supreme Court EPA ruling
On Thursday, June 30, the U.S. Supreme Court issued a 6-3 decision, striking down regulations issued by the Environmental Protection Agency designed to reduce the release of greenhouse gases from coal-fired power plants around the country. The case was brought by West Virginia against the EPA, in an attempt to stop what the coal industry considered to be “over-regulation” by the EPA of power plant emissions. The EPA regulations had targeted the fossil fuel-driven power plants under the Clean Air Act provisions enacted by Congress since, without such regulations, the Biden Administration’s goal of cutting greenhouse gas emissions in this country by 50% by the end of the decade would likely be doomed to failure.
A Strained Legal Theory
Chief Justice Roberts, writing the majority opinion in which his fellow conservative justices joined in, latched onto the relatively novel conservative legal theory called the “major questions doctrine,” which states that only Congress – not an administrative agency – can make decisions on any “major question,” such as how to address climate change, and that the EPA had overreached its administrative function by making major policy decisions on climate change policy that should have been properly decided by Congress. This “major question doctrine” had never been cited before in a Supreme Court majority decision and had recently been cited only once in a concurring decision dealing with the Center for Disease Control’s regulations relating to the COVID-19 pandemic. However, at the root of the Court’s decision was the decades-long efforts by the conservative movement and their allies in the fossil fuel industry to curtail the EPA and other agencies from aggressively implementing public policy goals of the Clean Air Act and other environmental statutes through broadly based regulatory schemes.
Even as the majority of the Court seemed to tacitly concede that the U.S.’s efforts to address climate change largely hinged on efforts to implement carbon neutrality on the nation’s utility industry, they still reached to dubious conclusion that the EPA was prevented from taking an activist regulatory stance, even if Congress has so far failed to enact legislation on climate change policy as part of the Biden Administration’s Build Back Better plan. The one missing vote was that of West Virginia Senator Joe Manchin, who apparently caved to the lobbying efforts of the coal industry and other well-financed fossil fuel boosters, who have taken a devil-may-care approach to the looming climate change disasters that are unfolding in real-time.
The Court’s decision in West Virginia v. EPA left the door open for the EPA to implement regulations on a plant-by-plant basis, knowing of course that this woefully ineffective approach to curbing the contribution of coal-fired power plants to dangerous greenhouse gases was a poor substitute for the comprehensive and industry-wide approach that the EPA has been taking to implement the goals of Clean Air Act. In enacting this legislation, Congress delegated to the EPA broad rule-making authority, which made perfect sense since the EPA was intended to have the special expertise in designing effective rules and regulations to implement the public policy goals of the Clean Air Act and other environmental statutes.
EPA Ruling is a Call to “Wake Up From Our Stupor”
Justice Elena Kagan, one of the three liberal dissenting justices, pointed out in a scorching dissent that the majority’s 6-3 decision essentially meant that the Supreme Court was usurping the power of Congress and the federal government’s expert agency (the EPA) to make critical decisions regarding climate policy. As Justice Kagan writes, “I cannot think of many things more frightening.”
With a Supreme Court intent on dismantling the EPA’s regulatory approach to climate change policy, perhaps the best, and only, hope is for Americans to wake up from their stupor regarding climate change, and send representatives and senators to Congress who recognize that climate change is an imminent existential threat to the country and to the entire planet (or at least the dominant species that has failed miserably to protect the environment) and that only an all-out “war” (Americans love that word) on greenhouse gas emissions can mitigate or reverse the environmental cliff we are hurtling towards.
If we have any remaining instinct for self-preservation and do not want to suffer the same fate as the Dodo birds and other extinct species, it is high time (and almost too late) for us the American people, and its elected representatives to make environmental protection our highest priority, since, without a habitable environment, all of the other rights that we cherish will become unsustainable. Support for Ukraine and other peoples who are standing at the ramparts of democracy is, of course, important, but democracy in this country, Ukraine, or anywhere else in the world cannot survive unless we can figure out how to protect and sustain a habitable environment.
Kenneth Foard McCallion is an environmental lawyer who has worked on several of the major environmental disaster cases of our time, including the Exxon Valdez case and the Bhopal Gas Disaster Litigation. He is also the author of several books on environmental and public policy issues, including “Shoreham and the Rise and Fall of Nuclear Power” and “Saving the World One Case at a Time.”