Supreme Court could stifle federal agencies’ regulatory power in high-profile air pollution case

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On February 28, 2022, the United States Supreme Court will hear oral argument in West Virginia v. EPA, a case centered on the US Environmental Protection Agency’s power to regulate greenhouse gas emissions that drive climate change. How the court decides the case could have wide ramifications, not just for climate change, but for federal regulation in many areas.

The case stems from actions over the past decade to reduce greenhouse gas emissions from power plants, a centerpiece of US climate change policy. In 2016, the Supreme Court blocked the Obama administration’s Clean Power Plan, which aimed to reduce these emissions. The Trump administration repealed the Clean Power Plan and replaced it with the much less stringent Affordable Clean Power Rule. Various parties challenged the measure, and a federal court struck it down a day before Trump left office.

The EPA now says it does not intend to enforce either rule and plans to issue an entirely new set of regulations. In such circumstances, the courts generally wait until the agencies have finalized their position before intervening. This allows agencies to assess evidence, apply their expertise, and exercise policy-making discretion. It also allows courts to examine a concrete rule with practical consequences.

From my work as an environmental law scholar, the Supreme Court’s decision to hear this case is surprising because it involves regulations that the Biden administration does not plan to implement. This reflects a keen interest by the Court’s conservative majority in the government’s regulatory power – an issue whose impacts go well beyond air pollution.

On October 14, 2020, then senator. Kamala Harris interviews Supreme Court nominee Amy Coney Barrett about her views on climate change.

How much latitude does the EPA have?

The court granted motions from coal companies and Republican-led states to consider four issues. First, under Section 111 of the Clean Air Act, can the EPA only control pollution by considering direct changes to a polluting facility? Or can it also employ “beyond the line” approaches that involve broader policies?

Section 111 directs the EPA to identify and regulate categories of air pollution sources, such as oil refineries and power plants. The agency must determine the “best emission reduction system” for each category and issue guidelines quantifying the reductions achievable under that system. States then submit emission reduction plans, either adopting the best system identified by the EPA or choosing alternative means to achieve equivalent reductions.

In determining how to reduce emissions, the Trump administration only considered changes that could be made directly to coal-fired power plants. The Obama administration, on the other hand, has also considered replacing these plants with electricity from low-carbon sources, such as natural gas and renewable fuels.

The issue of EPA latitude under Section 111 involves a landmark administrative law decision, Chevron v. Natural Resources Defense Council. This 1984 decision directs courts to follow a two-step process when considering an agency’s interpretation of a statute.

If Congress has given clear direction on the issue at hand, courts and agencies must follow the intent expressed by Congress. However, if the law is “silent or ambiguous with respect to the specific issue,” the courts must defer to the agency’s interpretation of the law, to the extent that it is reasonable.

As an appeals court judge, Supreme Court Justice Neil Gorsuch has strongly criticized the idea that courts should generally defer to agencies’ interpretations of federal law.
AP Photo/Sait Serkan Gurbuz

In recent years, conservative Supreme Court justices have criticized the Chevron decision as being too deferential to federal agencies. This approach, they argue, allows unelected regulators to wield too much power.

Could this case allow court conservatives to limit agency authority by eliminating Chevron’s deference? Maybe not. This case presents a less than ideal vehicle to revisit Chevron’s second stage.

EPA Trump argued that the “beyond close” issue should be resolved as part of Chevron’s first step. Section 111, according to the administration, categorically prohibits the EPA from considering switching to natural gas or renewable energy sources. The lower court therefore resolved the case as part of Chevron’s first step – rejecting Trump EPA’s argument – ​​and did not decide whether the EPA’s view deserved deference under the second leg of Chevron.

Chevron deference aside, a restrictive interpretation of Section 111 could have serious consequences for the EPA’s regulatory authority. A narrow reading of Section 111 could exclude important and proven regulatory tools to reduce carbon pollution, including emissions trading and switching to cleaner fuels.

Do climate change regulations impinge on state authority?

The second question relates to the division of Section 111 powers between the states and the federal government. The Clean Air Act requires the EPA to publish emission reduction guidelines for states to follow when setting pollution standards.

In repealing the Clean Power Plan, the Trump administration argued that the plan forced states to follow EPA standards, violating the federal-state balance reflected in Section 111. Republican-led states argue now the same argument.

However, the case in court is the Trump administration’s affordable clean energy rule, which does not present the same federalism problem. Whether the now scrapped clean energy plan gave states enough flexibility is moot.

In my view, the court’s willingness to nevertheless consider the federalism aspects of Section 111 could bode ill for the EPA’s ability to issue meaningful emission reduction guidelines in the future.

Is carbon pollution from power plants a “major issue”?

The third issue the court will consider is whether regulating carbon emissions from power plants constitutes a “major issue”. The major issues doctrine provides that an agency cannot regulate without clear direction from Congress on issues that have broad economic or political impacts.

The Supreme Court has never defined a major issue, and it has only applied the doctrine five times. In the most significant case, in 2000, he struck down the Food and Drug Administration’s attempt to regulate tobacco. The court noted that the agency had never regulated tobacco before, that its legal authority over tobacco was unclear, and that Congress had always assumed the FDA had no such authority.

By comparison, the Supreme Court upheld and reaffirmed the EPA’s authority to regulate greenhouse gases under the Clean Air Act, and the agency’s authority to regulate power plant pollution under the Act. 111 is beyond doubt.

However, when the Supreme Court struck down the workplace COVID-19 vaccine or test mandate on January 13, 2022, Justice Neil Gorsuch wrote an agreement touting the potential of the major issues doctrine to check the power of federal agencies. A sweeping interpretation of the major issues doctrine here could cripple the EPA’s ability to respond to climate change under the Clean Air Act.

If the court requires more specific statutory authorization, Congress may not be up to the task. Indeed, many observers fear that a broad interpretation of the doctrine could have repercussions far beyond climate change, drastically limiting the power of federal agencies to protect human health and the environment, in response to both new threats such as the COVID-19 pandemic and familiar issues such as food security.

Has Congress delegated too much power to the EPA?

Finally, the court will consider whether Section 111 delegates too many legislative powers to the EPA — yet another opportunity for conservative justices to limit the power of federal agencies. The doctrine of non-delegation prohibits Congress from delegating its main legislative powers to regulatory bodies. When Congress authorizes agencies to regulate, it must give them an “intelligible principle” to guide their regulatory discretion.

For decades, the Court has looked with deference to statutory delegations of power. In fact, he hasn’t struck down a law for violating the doctrine of non-delegation since the 1930s.

In my view, section 111 should easily pass the “intelligible principle” test. The law outlines specific factors that the EPA must consider in determining the best emissions reduction system: costs, health and environmental impacts, and energy requirements.

Still, the case presents an opportunity for court conservatives to reinvigorate the nondelegation doctrine. A 2019 dissenting opinion by Justice Gorsuch, joined by Chief Justice John Roberts and Justice Clarence Thomas, advocated a stricter approach in which agencies would limit themselves to making the necessary factual findings and “filling in the details” in a federal legislative scheme. It’s unclear whether Section 111 — or many other federal laws — would survive this approach.

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