Today, in a decision on a non-existent plan with non-existent damage to the people who brought the case, the Supreme Court used the opportunity to limit the Danish Environmental Protection Agency’s ability to regulate the energy sector’s carbon emissions.
In a summer of major US Supreme Court rulings, West Virginia v. Environmental Protection Agency was one of the foreign cases on the case. First, it was a dispute that did not really exist. The complaint was about the Clean Power Plan, a set of rules issued by the EPA in 2015, which would have pushed power plants to significantly reduce CO2 emissions by 2030. Only the plan never succeeded. Fossil fuel executives and Republican officials went to hell over its potential economic impact, went to court and quickly got the rules suspended. A year later, then-President Barack Obama handed over the keys to the EPA to Donald Trump, and the plan was gone forever.
So environmentalists were shocked and concerned when the Supreme Court decided to take up a challenge against the plan that had been on its way through the courts. They had good reason. Chief Justice John Roberts wrote for the Conservative majority with six justices, saying the consequences of such a policy were too great to be adopted without more explicit permission from Congress.
The rationale does not undermine the EPA as much as some environmentalists had feared. The decision will still give the agency the opportunity to regulate the power plants’ emissions, albeit more narrowly than before. And the court did not take the opportunity to dispel the precedent that says agencies like the EPA can tackle CO2 emissions broadly. But the decision remains a serious blow, highlighting the court’s skepticism about ambitious actions by federal agencies and offering a potential roadmap for future legal challenges to climate policies. “They say, ‘We’re loading the gun today, but we do not want to point to anything else yet,'” said Jay Austin, a senior lawyer at the Environmental Law Institute, a nonprofit legal group.
“The Court appoints itself – instead of Congress or the Bureau of Experts – as the decision-maker on climate policy,” wrote Judge Elena Kagan in her dissent, which was joined by the other two Liberal judges. “I can not think of many things more frightening.”
The dispute, brought by a group of red state attorneys, was linked to part of the Clean Air Act, which allowed the agency to set the “best emission reduction system” for power plants. The question before the Court was one of scope. Perhaps by “best system,” Congress thought the EPA could require emission reduction technology at specific power plants that it had for other pollutants. Or perhaps it was a broader mandate that allowed measures that could result in the shutdown of a coal-fired plant in favor of producing cleaner energy elsewhere. With the Clean Power Plan, the EPA chose the more far-reaching interpretation.
But that disagreement suggested an even bigger legal question: What can government bureaucrats do with the often vague instructions Congress gives them? Traditionally, there is a certain way things go in Washington: Elected officials cannot be expected to scrawl every detail of every policy out, nor would they want to. So it becomes the task of people at regulators who take the outlined laws and put them into action. Judges typically do not like to stand in the way. Under a doctrine known as the “Chevron deference,” citing a 1984 Supreme Court ruling involving the oil company, judges have repeatedly said it is best to let scientists and political experts do their jobs.