The Supreme Court ended its term Thursday with another controversial ruling — not because the court had to but because the conservative majority wanted to. The result in West Virginia v. Environmental Protection Agency is that the EPA is now far more limited in its ability to fight climate change. It also means other federal agencies are on notice that the court might tell them, too, that they suddenly lack the authority to respond to major problems in the areas Congress has tasked them to oversee.
The case revolves around Section 111 of the Clean Air Act, which authorizes the EPA to impose limits on pollution sources based on the “best system of emissions reduction.” During the Obama administration, the agency determined the best system to cut emissions from power plants involved shifting away from highly polluting coal-fired electricity to cleaner natural gas and renewables. It was not widely disputed.
But the court declared that the agency overstepped its authority when it wrote a rule that would encourage fuel-switching, because Congress did not clearly task the agency “with balancing the many vital considerations of national policy implicated in the basic regulation of how Americans get their energy.” Reshaping the electricity sector is a “major question” of policy, the court argued, and the EPA must show that Congress clearly delegated to the agency powers of such breadth.
“But that is just what Congress did when it broadly authorized EPA in Section 111 to select the ‘best system of emission reduction’ for power plants,” Justice Elena Kagan countered in a dissent. “The ‘best system’ full stop — no ifs, ands, or buts of any kind relevant here.”
Congress regularly gives agencies flexibility to respond to novel problems. The Clean Air Act gave the EPA broad powers to regulate pollutants, because the agency can leverage scientific expertise to address significant environmental threats with a speed and exactitude that Congress cannot. “The majority today overrides that legislative choice,” Justice Kagan wrote. “In so doing, it deprives EPA of the power needed — and the power granted — to curb the emission of greenhouse gases.”
Going forward, the court did not forbid the EPA from writing a new greenhouse gas rule — just under substantial limits that seem likely to make any resulting regulation ineffective. The decision also raises broader questions about when and how all federal agencies, not just the EPA, can act in the public interest. Some observers said they worried the court would use this case to aggressively rein in the administrative state. The court did not go as far as they had feared, but judges could still use the new precedent to overturn all sorts of rules they dislike.
Sadly, “it could have been worse” might be about the best Americans can begin to expect from this court, which took a hard right turn this session. As in other recent cases, the majority had options to avoid issuing a decision of such reach. But the court’s conservative wing grabbed at the chance to issue a ringing decision. The consequences of the conservative majority’s emboldened disposition — on the environment, privacy rights, gun violence, the separation of church and state, and countless other momentous issues — are only beginning to be seen.