US Supreme Court Votes to Cook the Planet by Limiting EPA's Power

To nobody's surprise, the U.S. Supreme Court voted 6 to 3 to make it impossible for the Environmental Protection Agency (EPA) to protect the environment from climate change, to regulate carbon dioxide emissions from power plants, to meet American commitments under the Paris Agreement, and likely to keep the planet from heating more than 2 degrees Celsius, let alone 1.5 degrees.

Chief Justice John Roberts wrote the decision:

"Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible 'solution to the crisis of the day.' But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body."

This all started with an Obama-era Clean Power Plan authorized under the Clean Air Act that had already been rejected by the courts just as former president Barack Obama was leaving office and what was left was torn up by then-incoming President Donald Trump.

Then there was a Trump-era plan that never took effect because it was struck down by the Court of Appeals. So why was this happening at all? Why isn't this all moot? According to The Hill, "The case was brought by several states led by West Virginia, who are seeking to preemptively block the Biden administration from setting standards that are likely to result in a shift away from coal plants and towards those powered by cleaner energy sources."

Essentially, it was a gut of the EPA's power to regulate anything that wasn't in the original 1970 Clean Air Act authorized by Congress, back at a time when carbon dioxide wasn't on the radar. It is almost as silly as saying the Second Amendment can only deal with muskets. 

Reading the decision is difficult because they are twisting and turning to make their point, but in her scathing dissent, Justice Elena Kagan is clear as a bell, and we are going to let her write most of the rest of this post.

She started with a bang: "Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to the most pressing environmental challenge of our time.”

Noting the dangers of climate change and its origin from carbon dioxide emissions, she continued: 

"Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil-fuel-fired power plants. Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that 'causes, or contributes significantly to, air pollution' and that 'may reasonably be anticipated to endanger public health or welfare.' Carbon dioxide and other greenhouse gases fit that description."

She noted how the court had already obstructed the Obama-era Clean Air Plan. And even though it was obsolete and essentially dead, "this Court determined to pronounce on the legality of the old rule anyway" and "there was no reason to reach out to decide this case." 

Kagan said precedent shows that the EPA has the right to regulate, and used an interesting precedent: tobacco. The industry used the same strategy and the Supreme Court rejected it.

One of the arguments that the majority made—or should we say made-up—is the "major questions doctrine" where something of critical importance should be referred back to Congress. Kagan wrote: 

"Special canons like the 'major questions doctrine' magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence."

And it goes against history; the delegation of authority to agencies has been critical. A long excerpt:

"Over time, the administrative delegations Congress has made have helped to build a modern Nation. Congress wanted fewer workers killed in industrial accidents. It wanted to prevent plane crashes, and reduce the deadliness of car wrecks. It wanted to ensure that consumer products didn’t catch fire. It wanted to stop the routine adulteration of food and improve the safety and efficacy of medications. And it wanted cleaner air and water. If an American could go back in time, she might be astonished by how much progress has occurred in all those areas. It didn’t happen through legislation alone. It happened because Congress gave broad-ranging powers to administrative agencies, and those agencies then filled in—rule by rule by rule—Congress’s policy outlines."

That's out the window now. When it comes to carbon emissions, the senators from big coal and ExxonMobil will make the decisions. Kagan concluded, "Whatever else this Supreme Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high."

Yet the court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.

This will not end here with the regulation of carbon dioxide. Expect to see the “major questions doctrine” used to stymie any regulation that big business doesn't like from now on; they all have a get-out-of-jail-free card. Just wait and see what happens when the government tries to regulate car emissions. And as far as hitting the targets promised by the world's second-largest carbon dioxide emitter, forget about it: They are toast and we are cooked.