Unvarnished and unbiased, this is what the U.S. Supreme Court did in its West Virginia v. EPA decision last month: Chief Justice John G. Roberts, Jr. and his merry band of conservative cohorts ruled against an obsolete EPA plan — repealed by the Trump Administration and rejected by the Biden Administration — to create a new but largely undefined doctrine that federal judges across the country will use to stymie all manner of federal agency rulemaking.
The Clean Air Act gives EPA the power to regulate air pollutants in the U.S. In 2015, EPA adopted the Clean Power Plan to regulate carbon dioxide from power plants by requiring states to engage in generation shifting — shifting higher carbon dioxide emitting sources like coal to lower emitting sources like wind, solar and natural gas.
The Clean Power Plan never went into effect. Market forces, however, have driven the power industry to meet the plan's nationwide emissions target through the recommended generation shifting. And the Biden Administration announced it wanted to create new rules under the CAA to deal with carbon-dioxide and other greenhouse gasses responsible for climate change.
You have to ask yourself, why would the Supremes take up a case where no one is subject to its terms?
Why would the Supreme Court not wait to see what new carbon-dioxide regulations the Biden Administration proposed?
I suggest West Virginia v EPA isn't so much about the outcome of that case — although it has repercussions regarding meeting greenhouse emission targets — but rather a vehicle for the conservative Supreme Court to create a doctrine that makes it relatively easy to restrict the power to act by federal agencies.
Up until now, the courts have by and large given regulatory agencies deference to administer statutes and plans. However, federal agencies sometimes do stray in writing statutes. In such instances, the Supreme Court typically examined the fit between the agency, the power claimed, and the broader statutory design provided by the law.
For example, in Food and Drug Administration v. Brown & Williamson, the FDA wanted to regulate tobacco under its authority to regulate drugs and drug delivery devices. But Congress already had created a number of statutes that regulated tobacco not involving FDA. The Supreme Court ruled Congress had shown it did not want the FDA to control the tobacco industry. The high court reasoned FDA's desire did not fit the existing broader statutory law. The FDA had strayed from its lane.
In writing for the FDA v. Brown and Williamson, Justice Sandra Day O'Connor wrote in “extraordinary cases there may be reason to hesitate” before signaling approval of an agency statute.
O'Conner suggested the high court needed to be guided, in part by common sense, in how Congress was likely to delegate authority to an agency to handle issues fraught with political and/or economic magnitude.
Roberts has thrown out common sense with the bathwater.
In West Virginia v. EPA, the agency has not strayed in promoting generational shifting. There is no denying the EPA is required to regulate greenhouse gasses. In 2007 in Massachusetts v. EPA, the Supreme Court found under the Clean Air Act greenhouse gasses were air pollutants, and it gave states the power to sue the EPA for non regulation.
Under the standards applied by previous Supreme Courts, there's a perfect fit between the agency and the power claimed. Which leaves for debate the broader statutory design of the law. Did Congress give EPA broad authority to craft generational shifting to shrink the nation's carbon footprint?
A fair and unbiased reading of the Clean Air Act and Clean Power Plan would suggest yes. Don't take my word for it. On Jan. 19, 2021, the District of Columbia Court of Appeals overturned EPA's 2019 repeal of the CPP, ruling that the Clean Air Act “does not unambiguously bar a system of emission reduction that includes generation shifting.”
A common sense reading, as suggested by O'Connor, would say the same. But Roberts is having nothing of the specific principles that have guided the Supreme Court in previous relevant cases:
“Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’ We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’ Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”
Roberts goes on to say in such cases courts should be “skeptical.” Nowhere does Roberts define in his ruling what constitutes extraordinary claims.
In her withering dissent, Justice Elena Kagan expressed her frustration with Robert's reasoning:
“The current court is textualist only when being so suits it,” she wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”
Beyond the Supreme Court doors, Congress is unable to pass a budget on time much less legislate. The bottom line is, in most circumstances, all federal agencies have are old laws to craft new statutory regulations from for the good of the nation.
Now, with West Virginia v. EPA in hand, any federal judge can classify any federal statute as extraordinary under Robert's interpreted major doctrines question. Can you say gridlock?
Ultimately, Roberts is requiring Congress to take greater interest in doing its job. On the face of it, that seems like a good idea. But in passing legislation, Congress too often doesn't know what it doesn't know. It simply cannot write laws that foresee every possible circumstance. Which is why Congress often writes laws that are broad and sweeping to give agencies wiggle room to do their jobs. Roberts rejects real world reality.
Congress also is partisan and broken. Ironically, the Supreme Court just granted certiorari in Moore v. Harper to consider whether state legislatures have the sole responsibility for drawing congressional district lines beyond the checks and balances of state courts. That case amounts to partisanship on steroids. If affirmed by the Supreme Court, there's little to no chance for Congress to do what the Robert’s majority decision demands in West Virginia v. EPA.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at firstname.lastname@example.org.