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Analysis

Supreme Court Drastically Limits EPA’s Efforts to Mitigate Climate Crisis

The Supreme Court’s decision in West Virginia v. EPA imperils evidence-based policymaking.

The Supreme Court took an axe to the federal govern­ment’s power to rein in the climate crisis on Thursday, slash­ing its abil­ity to limit danger­ous carbon pollu­tion from power plants. The decision comes on the heels of the latest United Nations report warn­ing of cata­clys­mic damage from climate change, includ­ing mass animal extinc­tions and extraordin­ary levels of human suffer­ing from famine, fires, and floods, if urgent action is not taken.

In West Virginia v. Envir­on­mental Protec­tion Agency, the Court uses an obscure doctrine as an anti-regu­lat­ory tool — one that it has also employed to over­turn Covid-related public health meas­ures in the past year and that it could use to under­mine a sweep­ing range of envir­on­mental, public health, employ­ment, and consumer protec­tions in the near future. The major­ity severs EPA’s power even as it acknow­ledges that that the agency’s approach could be a “sens­ible solu­tion to the crisis of the day.”

The decision is a radical depar­ture from long-estab­lished under­stand­ings of the role of govern­ment, under­min­ing its power to engage in evid­ence-based poli­cy­mak­ing to serve the public interest. To safe­guard the public, Congress must act swiftly to preserve the govern­ment’s abil­ity to conduct evid­ence-based poli­cy­mak­ing to respond to complex issues.

The ruling strips the EPA of power to use common­sense and compre­hens­ive means to limit carbon emis­sions from power plants. The Court reached to hear this case when there were seri­ous ques­tions as to whether it had juris­dic­tion to do so, as the regu­la­tion at its heart — the Obama admin­is­tra­tion’s Clean Power Plan — never came into effect because the Court blocked it in 2016 pending the resol­u­tion of several lawsuits. After the Trump admin­is­tra­tion tried to imple­ment a more industry-friendly program, the Biden EPA announced last year that it would build a new climate rule on a “clean slate.”

The Clean Air Act of 1970 gives EPA broad author­ity and flex­ib­il­ity to address new sources of air pollu­tion and embrace new pollu­tion control tech­niques. But in West Virginia v. EPA, the Court under­cuts that author­ity, invok­ing a novel and ill-defined legal theory — the “major ques­tions doctrine” — that invites judges to inval­id­ate regu­la­tions that have “major” economic and polit­ical signi­fic­ance on the grounds that Congress failed to expli­citly author­ize them.

The Court recently under­mined agen­cies’ evid­ence-based policies in two pandemic-era decisions, obliquely rely­ing on the major ques­tions doctrine to strike down the Centers for Disease Control and Preven­tion’s evic­tion morator­ium and block the Occu­pa­tional Health and Safety Admin­is­tra­tion’s mandate that large employ­ers ensure their work­ers are vaccin­ated or frequently tested for Covid-19. In Thursday’s case, the Court embraced the doctrine in a full-blown way, making clear that it views a wide range of agency protec­tions as poten­tial targets for abol­i­tion.  

As has become clear during the pandemic, we need govern­ment entit­ies with deep subject matter expert­ise to craft policy solu­tions informed by science, econom­ics, and tech­nical know­ledge. Indeed, time and again, Congress has created agen­cies with mandates to do just that. While expert-driven policy solu­tions are not infal­lible, and poli­cy­makers often balance scientific find­ings with economic consid­er­a­tions and polit­ical real­ity, evid­ence-based poli­cy­mak­ing is essen­tial to managing a crisis. The compar­at­ively high Covid-19 fatal­ity rates in juris­dic­tions across the coun­try where science has taken a back seat to polit­ics under­score this point. We need evid­ence-based poli­cy­mak­ing to respond to the climate emer­gency just as much as we need it to combat the pandemic. And as the Supreme Court has recog­nized previ­ously, the EPA — not Congress or the courts — has the expert­ise to make the best policy calls based on science and tech­no­logy.

But the Supreme Court’s reas­on­ing in this case imper­ils evid­ence-based poli­cy­mak­ing. As Justice Kagan notes in dissent, “The Court appoints itself — instead of Congress or the expert agency — the decision­maker on climate policy. I cannot think of many things more fright­en­ing.” In invok­ing the major ques­tions doctrine, the Court holds the Congress of 1970 (when the Clean Air Act was passed) and the Congress of 1990 (when it was amended) to a novel stand­ard that is rigid and abstract. In so doing, the dissent notes, the Court rides rough­shod over the capa­cious and forward-look­ing author­ity those Congresses did grant to the EPA to address envir­on­mental and public health issues, guided by the agency’s deep scientific and tech­no­lo­gical subject matter expert­ise.

The decision also exacer­bates the governance crisis in this coun­try. By gutting regu­lat­ory agen­cies’ abil­ity to use exist­ing stat­utory author­ity to respond to contem­por­ary soci­etal needs, the Court places the onus on Congress to amend count­less laws to expressly author­ize agen­cies to “make decisions of vast economic and polit­ical signi­fic­ance,” whatever that means. The sugges­tion that Congress just needs to pass more expli­cit instruc­tions to agen­cies in order for the govern­ment to perform core func­tions is easier said than done. For his part, Justice Gorsuch in concur­rence, alarm­ingly, raises the specter that agency action without express congres­sional author­iz­a­tion could be deemed to viol­ate the Consti­tu­tion, a posi­tion the dissent vehe­mently rejects.

In our broken polit­ical system, hampered by the Senate fili­buster, Congress has neither the will nor the in-house expert­ise to update hundreds, if not thou­sands, of laws. And the Supreme Court’s juris­pru­dence repeal­ing voting rights protec­tions, sanc­tion­ing partisan gerry­man­der­ing, and gutting campaign finance regu­la­tions contrib­utes to Congress’s dysfunc­tion.

What path forward remains for the federal govern­ment to act on climate change? Today’s Supreme Court decision does­n’t stop the EPA from setting carbon pollu­tion limits and impos­ing tech­no­lo­gical controls at indi­vidual power plants. Other federal agen­cies — includ­ing the Depart­ments of Energy, the Interior, and Agri­cul­ture — also continue to have power to help avert the worst of the climate crisis.

But restor­ing the EPA’s power to compre­hens­ively regu­late power sector carbon emis­sions will require decis­ive congres­sional action. For Congress to be up to the task of legis­lat­ing on such tech­nical issues, it would first have to rebuild its own capa­city to engage in evid­ence-based poli­cy­mak­ing. But to fully grapple with contem­por­ary soci­etal needs, Congress needs to increase not only its tech­nical capa­city but also its demo­cratic respons­ive­ness. And over the long term, Congress needs to take mean­ing­ful steps to fix our demo­cracy.