United Nations scientists last week laid out in alarming detail the “potentially irreversible” threat that climate change poses to humanity and the “rapidly closing window of opportunity to secure a liveable and sustainable future for all.” The same day, the Supreme Court heard oral arguments in a case that could nail that window shut, hampering the ability of the Environmental Protection Agency to regulate emissions from power plants.
That would be disastrous on its own. But conservative justices have been on a broader mission to restrict the power of federal agencies, and the questioning in the EPA case suggests that they are inclined to use the dispute to accomplish that questionable goal.
The Supreme Court’s willingness to consider the case is itself outrageous. The controversy involves the EPA’s authority to regulate emissions from power plants through the Obama administration’s Clean Power Plan. The only problem: The Clean Power Plan is defunct. The Trump administration repealed the program in 2019. A federal court has since issued a stay of that repeal, but the Biden administration has made clear that it intends to propose a new rule, because technology in the energy sector has shifted considerably. Why would the Supreme Court interfere now, with no rule in place?
Beyond that, the argument that the EPA has overstepped its authority in issuing the rule is tenuous at best. The Supreme Court has already made clear that the EPA can regulate carbon dioxide and other greenhouse gas emissions from power plants. Opponents of the Clean Power Plan argue that the rule went beyond what the law allows in attempting to regulate emissions from the entire electrical grid, rather than individual power plants. While it is true that the decades-old Clean Air Act is not the ideal mechanism to combat climate change, the Obama-era plan fit well within the bounds that the Clean Air Act laid out for regulating dangerous pollutants.
Conservatives have invoked the “major questions” doctrine to argue that the court does not need to defer to the EPA because Congress did not explicitly grant the agency this authority and because the policy addresses a matter of “vast economic or political significance.” In the past, this theory has been used to stop the Food and Drug Administration from regulating tobacco without congressional authorization.
But using the doctrine to stop the EPA here would be, well, a major — and dangerous — expansion. By employing it to hamper the EPA’s ability to deal with the most pressing environmental issue of our time, it could impact an enormous expanse of regulatory authority, limiting the ability of agencies to respond to pressing needs at a time when Congress has shown itself incapable of acting.
There is no need for such radical rewiring of administrative law in this case. The Supreme Court should recognize what is plainly obvious: This case has been overtaken by events. The justices should stop making legal mischief and let the Biden administration craft its own rule. Meanwhile, Congress should supersede these legal battles and finally lay out a comprehensive strategy to combat climate change, ideally by taxing carbon pollution.
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