West Virginia vs. EPA involved several states challenging the Obama administration’s Clean Power Plan, which sought to reduce greenhouse gas emissions in electricity generation in a “systemic” way. The plan pushed utilities not just to make individual plants more efficient, but more broadly to switch from coal to natural gas (or buy emissions credits if they couldn’t).
The rule was never implemented, as it was imposed by the Supreme Court, struck down by the Trump administration, and not revived by the Biden administration. Normally, this would cause the Supreme Court to dismiss the case as moot. This particular court, however, was evidently keen to continue the mission of restricting federal regulatory power that it had begun in earlier rulings reversing pandemic responses (reversing a moratorium on evictions, as well as a requirement that many companies require their employees to get vaccinated or be tested for the coronavirus regularly).
The court recognized that, read in isolation, the language of the Clean Air Act could be interpreted as authorizing the plan crafted by the Obama administration. He felt, however, that because the plan involved “major” intervention in the power plant business, it had to be explicitly authorized by Congress. The court ruled that the plan was too big a regulatory effort for the Environmental Protection Agency to design on its own with the blanket permission of Congress.
The problem here, as Judge Elena Kagan pointed out in her dissent, is that Congress clearly sanctioned a “major” action by the EPA. Indeed, it authorized the agency to select “the best system emission reductions” for power plants [italics added].
There’s a reason Congress asked the EPA to come up with the best possible system: It lacks the expertise — and the resources — to develop such a solution itself. Its members are unaware of the relevant technologies and also unaware of the emission control approaches that scientists and environmental engineers believe hold the most promise.
To be sure, judicial presumptions against reading the acts of Congress in such a way as to permit particular types of policies are not new. In 1804, for example, the Supreme Court declared “that no act of Congress shall ever be construed as violating the law of nations”—today we would say “international law”—”if there remains another construction possible”; “such an extraordinary intention should have been clearly expressed” in a law if the courts are to honor it.
In 1979, the court ruled that because National Labor Relations Board certification of a union of parochial school employees “would raise serious constitutional issues” under the First Amendment, only “the affirmative intent of the Congress clearly expressed” would be enough to persuade the courts that this was the intention of Congress.
And the court ruled in 1994 that respect for federalism dictated that in order to apply the age discrimination in employment law to state judges, it “must be absolutely certain that Congress intended to ‘achieve’ such a result.
It is, however, a huge step forward between judicial presumptions that Congress has no intention of undermining international law, constitutional rights or state sovereignty and dealing with all social regulations and major economic issues as suspicious. The Constitution clearly requires Congress to respect international law, respect the free exercise of religion, and guarantee states a republican form of government. The Constitution, however, does not support the court’s new presumption against major regulations in the absence of detailed specifications from Congress. As Justice Oliver Wendell Holmes wrote in his famous dissent in Lochner vs. New York – which struck down a New York State maximum hours law for bakers – “This case is decided on an economic theory that much of the country does not have. … But a constitution is not meant to embody any particular economic theory, whether it be paternalism and the organic relationship of citizen to state or laissez-faire.”
Climate change agenda may survive EPA Supreme Court ruling
The Roberts Court has now created what is effectively a one-way ratchet for deregulation. Deregulatory actions only need to be passed once and become effective immediately, but if Congress seeks to intervene to address a social issue such as a public health emergency or climate change, it may need to -to be legislated several times before its action lasts, because no one can predict what the court will consider as “major” or what the court will consider as a sufficiently clear statement. Each of these issues will take at least two or three years to argue; if a deregulatory administration takes power in the meantime, it will stop defending the litigation and the regulatory effort will fail (or have to be revived).
This bold move is a stark departure from conservative arguments over the past half-century that the courts should not favor or oppose any particular set of policies, but rather leave policy-making to the political branches.
It is also a major departure from the long-standing Conservative argument that the private sector benefits when the regulatory environment is predictable: which regulations are or are not important enough to be subject to the new The Court’s “major issues” doctrine is inherently subjective. It will also intensify political disputes over judicial appointments – as if they weren’t already polarized enough – as the interpretation of what counts as a “major issue” will inevitably reflect the ideology of the judge in question.
It is not unreasonable to have more stringent requirements for major regulations. Congress has legislated certain protections against ill-conceived and overly sweeping rules. For example, the Congressional Review Act prohibits major rules from taking effect until Congress and the public have had at least 60 days to pursue its invalidation. Executive orders issued by several presidents imposed additional controls. Both contain explicit definitions of major rules and assign the Office of Management and Budget to make those judgments. Congress and various presidents, however, have rejected proposals for even greater requirements for major rules along the lines of what the court is now imposing. For example, legislation passed by the House in 2017 would have prevented very important rules from taking effect without an affirmative vote from both houses of Congress. The Senate rejected this proposal. Now the Supreme Court has effectively revived it.
When criticizing decisions protecting civil rights, defrauding consumers or the environment, the Tories have called for “principled restraint”. In launching this sweeping effort to frustrate the initiatives of Congress and the President-elect, the Court shows little restraint and abandons long-held conservative principles.