While the country focuses on the Supreme Court overturning Roe vs. Wade, another Supreme Court decision will affect the lives of Americans.
On June 30, 2022, the Court decided on a West Virginia vs. Environmental Protection Agency (EPA) case. The justices voted six to three in favor of West Virginia. The three liberal justices dissented. The Supreme Court ruled that the Clean Power Plan established under the Obama administration went beyond the EPA’s mandate by surpassing congressional authority to push utilities to move away from coal power generation and toward renewable energy. The decision curbs the EPA’s ability to regulate power plant emissions.
The six conservative justices embraced what is commonly called the major questions doctrine. While Congress often delegates regulatory authority to federal agencies, according to the Supreme Court, any action an agency takes on issues of national significance has to be supported by statutory authorization. The Court has never used the term in any majority opinion.
The major questions doctrine is a response to “the explosive growth of the administrative state since 1970,” Justice Neil Gorsuch wrote in the concurring opinion. At issue with this case is whether Congress gave the EPA the authority to regulate carbon emissions through the Clean Power Plan. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” wrote Chief Justice John in the Court’s opinion.
Justice Elena Kagan wrote in the dissenting opinion:
“The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”
“The Supreme Court’s ruling in West Virginia vs. EPA is another devastating decision that aims to take our country backward,” said President Biden in a statement. “While this decision risks damaging our nation’s ability to keep our air clean and combat climate change, I will not relent in using my lawful authorities to protect public health and tackle the climate crisis.”
The chilling effect on greenhouse gas regulation
Kicking climate change mitigation to Congress means it is unlikely to occur. Congress has not passed any major legislation reducing greenhouse gas emissions since 2008.
The decision will affect all federal agencies which try to reduce emissions or build resilience to climate change. Any regulatory action by agencies could come under court review. The threat of judicial review casts a chilling effect on any current regulation or potential action. The Securities and Exchange Commission’s (SEC) proposal to require certain companies to disclose their greenhouse gas emissions data and climate change targets could face a lawsuit under the major questions doctrine.
SEC Commission Hester Pierce (Republican) hinted at a future court review of the proposal. In March of the proposed rule, she said, “The proposal, however, will undermine the existing regulatory framework that for many decades has undergirded consistent, comparable, and reliable company disclosures.”
The Federal Energy Regulatory Commission (FERC) is considering rules to help deploy renewable energy while transforming the U.S. power sector. FERC’s Democratic majority supports the proposed rules. However, the Supreme Court decision could cause those who oppose any regulatory action by FERC to file lawsuits.