The clean air and climate community was set on high alert last week when the U.S. Supreme Court limited the EPA’s ability to regulate carbon emissions from coal fired power plants. We’ve since taken a close look at the decision to understand the severity of the ruling, and its impacts on climate mitigation across the US and in Utah.
The good news is that in West Virginia v. Environmental Protection Agency (EPA), the Supreme Court did not eliminate the EPA’s authority to regulate greenhouse gas emissions to protect our climate and health. The EPA can still issue standards for utilities to install pollution-control measures, and other emission reduction regulations. However, the ruling also expands judicial oversight of the EPA. As we explain in more detail below, this decision introduces a novel and problematic doctrine that could hobble EPA’s ability to address climate change.
What is the Major Questions Doctrine?
One of the most concerning aspects of the Court’s ruling is the use of a new judicial standard called the “Major Questions Doctrine.” In short, this doctrine gives courts the unilateral authority to decide whether a federal agency like the EPA can implement “major” policies or regulations unless the agency can demonstrate “clear legislative authority” for the action in question.
Our primary concern is that the “Major Questions Doctrine” presents an opportunity for opponents of greenhouse gas regulation to use the judicial branch as a tool to strike EPA actions that they simply don’t like. This new doctrine allows the courts to deviate from long-standing practices that assume Congress knew what it was doing when it enacted permissive language in law that was meant to defer to agency expertise. This is, after all, the whole point of having administrative agencies—to carve out a group of experts that can dig into a subject in a way that Congress never could and guide our policy towards the best solutions. This decision upsets that very reasonable framework. Now, any entity that doesn’t like a rule or standard the EPA puts into place to regulate harmful emissions can challenge the EPA through the courts. And with a swift flick of the judicial pen, i.e., deciding the decision is “major”, the courts can strip the agency of the authority to implement that rule or standard.
Climate Leadership and “Clear Legislative Authority”
This is where Congress comes into play in a major way. The more the EPA can point to their “clear legislative authority” from Congress, the fewer roadblocks the EPA will run into when safeguarding our health and climate. Utah Clean Energy’s Climate Scientists, Logan Mitchell states, “This decision underlines the importance of congressional leadership on climate change. The EPA cannot be the sole source of climate innovation. Republicans and Democrats need to act to accelerate clean energy.”
In summary, we’re disappointed that the Court decided to limit the tools available to the EPA at a time when we need every tool in the toolbox to reduce emissions. But at the same time, the decision in no way strips the EPA of its authority to regulate greenhouse gas emissions. It remains to be seen how the EPA and Congress will navigate through the new judicial maze. What we know for certain is that we need to call upon Congress to enact clear and ambitious policies for addressing climate change.