Richard Lazarus is the Howard and Katherine Aibel professor of law at Harvard University.
Our nation’s environmental protection laws have been enormously successful over the past 50 years or so. Notwithstanding their obvious gaps and persistent shortfalls, they have significantly reduced air, water and land pollution across the country while the nation’s economy has grown exponentially. No less important, they have prevented the kind of environmental devastation and public health disasters that have occurred in nations lacking such laws.
That half-century of extraordinary success has depended on a partnership among the federal legislative and executive branches, long upheld by the courts. Congress can enact broad, capacious statutory language that authorizes agencies such as the Environmental Protection Agency to enact pollution controls that reflect the complexities presented by evolving environmental science, the nation’s economy and constant technological innovation. Congress deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress’s own inability to anticipate and address all those complexities on a real-time basis.
Congress also knew that it always retained the authority either to override, build upon or statutorily codify agency rulemaking, all of which it has done repeatedly over the years. The iterative process between Congress, the executive branch and the courts in environmental lawmaking worked exceedingly well for a significant chunk of time — or at least it did until partisan gridlock in the early 1990s effectively shut down congressional environmental lawmaking. As a result, agencies were forced to work with the congressional framework established in the 1970s and 1980s to address environmental threats.
Now, in sustaining Trump’s repeal of the Clean Power Plan — an ambitious Obama administration rulemaking that regulated greenhouse gas emissions from existing fossil-fuel-fired power plants — the court is calling into question the legal viability of that legislative and executive branch partnership by insisting that there must be “clear congressional authorization” to support any significant and important rule such as the Clean Power Plan.
Tellingly, neither the ruling itself nor its unnecessarily sweeping scope ever should have happened. In an extraordinary instance of judicial activism, the court agreed to hear the case even though the Biden administration has abandoned the Clean Power Plan and intends to write new regulations. And, on the merits, Chief Justice John G. Roberts Jr.’s opinion for the court forgets his own long-standing admonition, which he repeated again last week in his separate opinion in Dobbs v. Jackson Women’s Health Organization explaining why Roe v. Wade should not be overruled, that “if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
Putting aside the substantial arguments that the lower court had correctly ruled that the Trump administration’s repeal of the plan was unlawful, the high court could have easily ruled against an expansive view of the EPA’s authority to promulgate the Clean Power Plan in 2015 based on a readily available, narrowly drawn holding. Instead, under the ironic guise of promoting democracy, the branch of government least accountable to the voters has invented a sweeping doctrine of statutory interpretation to place the equivalent of a constitutional straitjacket on the ability of Congress and the executive branch — both of which are more accountable to voters than courts — to enact laws necessary to address the nation’s most pressing public health and environmental problems.
The court insists that capacious statutory language is insufficient to sustain significant agency environmental regulations, despite the obvious reality that the current Congress is incapable of doing more. The threatened upshot is the unraveling of the national government’s ability to safeguard the public health and welfare just as the United States and all nations face the greatest environmental challenge of all: climate change.
In the best of times, such a judicial arrogation to itself of how Congress can permissibly work with the executive branch might be merely misguided. Congress could adjust, and the nation’s important lawmaking could be accomplished. But Congress has been broken for more than 30 years in its essential lawmaking function and shows no sign of restoration. The nation and indeed the world have no time to wait to address climate change. That makes this ruling potentially devastating to the future because of the additional delay that will result as the EPA seeks new pathways to lower greenhouse gas emissions.
As Justice Robert Jackson warned more than 70 years ago, “There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Bill of Rights into a suicide pact.” The same is clearly true now for the court majority’s unbendingly doctrinaire view of the Constitution’s demands for separation of powers in limiting how Congress can permissibly authorize the most important agency rules. Nothing in the Constitution remotely compels such a misbegotten ruling.