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Supreme Court Has Taken Control of Climate Policy

SUN VALLEY, CA - MARCH 10: The gas-powered Valley Generating Station is seen in the San Fernando Valley on March 10, 2017 in Sun Valley, California. Atmospheric carbon dioxide levels reached a new record high in 2016 and have continued to climb in the first two months of 2017, scientists at the National Oceanic and Atmospheric Administration (NOAA) reported today. The vast majority of climate scientists contend that increasing greenhouse gas emissions drive climate change but new Environmental Protection Agency (EPA) Administrator Scott Pruitt disagrees. (Photo by David McNew/Getty Images)
SUN VALLEY, CA - MARCH 10: The gas-powered Valley Generating Station is seen in the San Fernando Valley on March 10, 2017 in Sun Valley, California. Atmospheric carbon dioxide levels reached a new record high in 2016 and have continued to climb in the first two months of 2017, scientists at the National Oceanic and Atmospheric Administration (NOAA) reported today. The vast majority of climate scientists contend that increasing greenhouse gas emissions drive climate change but new Environmental Protection Agency (EPA) Administrator Scott Pruitt disagrees. (Photo by David McNew/Getty Images) (Photographer: David McNew/Getty Images North America)
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By a 6-3 vote, the Supreme Court has held that the Environmental Protection Agency lacks authority to order reduced emissions to fight climate change.

Yes, you read that right.

In an opinion by Chief Justice John Roberts, the conservative justices said that Congress had not authorized a 2015 rule adopted by the agency aimed at shifting energy use from coal to natural gas and from fossil fuels to renewables. Climate change now joins abortion, guns, and church and state in the list of high-profile, emotionally charged topics on which the justices have issued landmark conservative opinions this term.

In the process of issuing its opinion, the court sidestepped the famous Chevron doctrine. That doctrine says the courts must defer to agencies’ reasonable interpretation of laws passed by Congress. Under Chevron rules, the court could have said that, since Congress’s grant of statutory authority to the EPA was ambiguous, it would allow the Barack Obama-era EPA regulation applying that grant to stand.

Instead, the court articulated and embraced for the first time what is in effect a new doctrine of administrative law, which it called the “major questions” doctrine. Under that doctrine, the court held, when an agency finds what the court considers to be a new power in a “vague” grant of statutory authority from Congress, the court must “hesitate before concluding” that the grant of power in fact exists.

While hesitating, the court will check to see if Congress has made a clear statement with regard to the grant of power. If there is no clear statement, the court will conclude that the agency lacks authority under the law.

If you parse the major-questions doctrine carefully, you can see that it is in tension with the Chevron doctrine. Major-questions doctrine applies to a “vague” grant to congressional authority; Chevron doctrine applies to “ambiguous” laws.

Hence, the major-questions doctrine appears to take a very large bite out of the Chevron doctrine. As the court formulated it, the new doctrine basically says that, if the courts think that a given expansion of authority is a big deal — a judgment that leaves plenty of room for discretion — then the Chevron doctrine won’t apply.

From the standpoint of those who have feared that this court would explicitly announce that it was overturning Chevron doctrine, today’s result has a dual message. The good news is that, as is Roberts’s preference, the courts did not explicitly overturn the nearly 40-year-old doctrine. Chevron lives — at least for now. That means lower courts, especially the US Court of Appeals for the DC Circuit, which does much of the administrative-law appeals work, can still use Chevron to decide run-of-the-mill cases.

The bad news is that, using the superseding doctrine of major-questions as a workaround, courts unsympathetic to agency action now have a tool to overturn administrative regulations rather than deferring to the agencies.

To make matters worse, major-questions doctrine could easily be understood as a further step toward the eventual abolition of Chevron doctrine. That is the sense you get from reading the concurrence by Justice Neil Gorsuch, the most vocal opponent of Chevron, who filed a concurrence joined by Justice Samuel Alito. The point of Gorsuch’s opinion was to describe the major-questions doctrine as grounded in the Constitution’s principle of giving legislative authority to Congress, not to agencies located within the executive branch.

For Gorsuch to say that major-questions doctrine is based in the Constitution is to say that the court should never take the position that Congress has delegated its lawmaking power to the agencies. On that formalist theory of the separation of powers, Chevron makes little sense.

If Congress passes laws and the courts interpret them, there is no obvious role for agencies that apply the laws to get deference in doing so. Yet that theory — that Congress may give agencies the authority to interpret ambiguous statutes — is the orthodox understanding of why the Chevron doctrine is consistent with the Constitution, long ago articulated by Justice Antonin Scalia.

In dissent, Justice Elena Kagan, joined by the court’s two other liberals, did not mince words. She insisted that the major-questions doctrine was a new invention of the court, despite Roberts’s characteristic claim to have found it in precedent. She invoked Chevron, albeit delicately, probably because she didn’t want to wave a red flag in front of the bull.

In a passage that will be much quoted, Kagan pulled back from a famous statement (at least famous among statutory interpretation experts) she made in a 2015 lecture at Harvard Law School, where she used to be dean. At the time, Kagan, speaking of methods of statutory interpretation, said, “We’re all textualists now.”

The line, echoing Thomas Jefferson’s statement in his first inaugural that “We are all Republicans — we are all Federalists,” was understood and probably meant as a peacemaking gesture — an attempt to consolidate statutory interpretation practice as between liberals and conservatives.

Times have changed. Kagan, a pragmatist who once sought to build bridges, now sees the conservative majority as truly outcome-oriented. After quoting herself on textualism, she wrote:

It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.

She concluded her opinion with a devastating observation: “The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”

More From Noah Feldman on the Supreme Court in Bloomberg Opinion:

• Supreme Court Makes Immigration Lockup Harder to Escape: Noah Feldman

• Ending Roe Is Institutional Suicide for the Supreme Court: Noah Feldman 

• Supreme Court Just Made New York’s Streets Meaner: Noah Feldman

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

More stories like this are available on bloomberg.com/opinion

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