The Supreme Court of the United States on June 9, 2022. Photo by @woomantsing on Unsplash.

Supreme Court guts regulatory power, spurring a titanic shift in climate action

In a stunningly wide-ranging ruling on Thursday, the Supreme Court of the United States has voted to overturn a cornerstone of the Clean Air Act, putting environmental regulation at risk and accelerating the climate emergency. The vote was 6-3.

Writing for the majority, Chief Justice John Roberts authored a scathing rebuke of the EPA for directly regulating carbon emissions, making the case that Congress did not expressly ask it to do so. EPA’s regulations, Roberts writes, “conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions “had become well known, Congress considered and rejected” multiple times.”

In the dissent, Justice Elena Kagan admonished the Court’s conservatives for “appointing themselves the decision-maker on climate policy.”

“Today, the court strips the EPA of the power Congress gave it to respond to the most pressing environmental challenge of our time,” Kagan wrote. “I cannot think of many things more frightening.” 

The case, West Virginia v. Environmental Protection Agency, challenged the ability of the federal government to delegate regulatory power from Congress to agencies within the administrative branch — a bedrock of how the modern federal government operates in an era of Congressional gridlock. 

What exactly happens now is unclear, but is sure to have wide-ranging consequences. Georgetown public policy professor Donald Moynihan predicted the ruling “will kneecap US efforts to address climate change and engage in other forms of regulation we rely on to keep a functional society.”

According to EPA data, the Clean Air Act alone prevented 230,000 deaths in 2020, mostly from avoided air pollution — the deadliest consequence of the climate emergency. Regulations like these are the core of the modern form of American government, allowing progress to occur without the time-consuming task of passing new laws.

Although the case was presumptively focused on climate action within the Clean Air Act — specifically, coal-heavy West Virginia’s challenge to the EPA’s climate rules “capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy”, according to SCOTUSblog — the effect of Thursday’s ruling is expected to send shockwaves throughout the entire federal government. The Food and Drug Administration could lose the ability to regulate. The end result is the Supreme Court trying “to turn off the government in order to turn it back on”, Jurassic Park style, according to Penn State law professor Daniel Walters.

The Clean Air Act, first signed into law by President Nixon, a Republican, has had a 50-year legacy of bipartisanship on what seemed to be a core function of government: Prevent millions of people from dying needlessly due to pollution. In 2007, the Supreme Court ruled that the Clean Air Act also covers carbon pollution, the main driver of climate change. Thursday’s ruling, by what has become an extremist, activist Court, is an aberration to historical precedent.

According to Carly Berke and Danielle Deiseroth of Data for Progress, the Supreme Court’s legacy of upholding the basics of environmental protection is now in jeopardy. “By stripping the EPA of its ability to regulate power plant emissions, SCOTUS would make it extraordinarily harder to hold power producers accountable for their pollution and to incentivize a transition to cleaner sources of energy.”

When the justices heard the case back in February, much of the discussion focused on the so-called “major questions doctrine”, the idea that “decisions of vast economic and political significance” must be specifically delegated by Congress to administrative agencies. By coincidence, oral arguments for the case occurred on the same day as a major Intergovernmental Panel on Climate Change report that found that countries aren’t doing nearly enough to slow the climate emergency.

In a statement at the time, the UN Secretary-General António Guterres called the IPCC report “an atlas of human suffering and a damning indictment of failed climate leadership.”

Thankfully, ambitious climate action continues to advance at the state and local level, and will not be affected by this ruling. California, for example, is in the process of setting mandates to completely eliminate carbon emissions by 2045. This week, Rhode Island became the 10th state to require 100 percent renewable energy. In the absence of federal regulations, state-level climate regulations can be ramped up by Public Utility Commissions.

Even at the federal level, Congress and the Biden Administration can still make significant progress on climate even with this ruling. There remain multiple pathways to ambitious climate action, both within the EPA and throughout government, that allow President Biden to act at the scale that the climate emergency requires.

Update, July 1: Currently invited climate lawyers Kassie Siegel, Director of the Climate Law Institute at the Center for Biological Diversity, Amy Turner, Senior Fellow at the Sabin Center for Climate Change Law at Columbia University, and Tim Hirschel-Burns, a law student at Yale Law School and co-founder of Law Students for Climate Accountability to discuss the Supreme Court ruling on the day of its announcement. Below is a recording of our conversation.

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