Supremes Kayo Climate Change Regulation: West Virginia v. EPA

Supremes Kayo Climate Change Regulation: West Virginia v. EPA 1

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

A 6-3 Supreme Court issued another blockbuster opinion last Thursday in West Virginia   Environmental Protection Agency (EPA) and ruled that the Clean Air Act didn’t provide  EPA expansive powers to regulate  carbon emissions

The decision, written by Chief Justice John Roberts, re-establishes his shaky control over the Court – which had last week in the Dobbs case to overturn the longstanding Roe v. Wade precedent despite his quibbles. The U.S. Chamber of Commerce had promoted the  nomination of Roberts to the Supreme Court and this latest decision fulfils the Chamber’s ongstanding priority to gut federal regulatory authority (see David Sorotia’s take in Jacobin, Chief Justice John Roberts Is Carrying Out Corporate America’s Long-Term Plan Perfectly.)

The legal implications of the ruling might in future, have more far-reaching implications, hampering regulatory authority throughout the executive branch. I’ll not discuss those possible issues here.

I’ll instead confine myself to two immediate implications of the latest decision, the first, the impact on U.S. global leadership, and involving foreign affairs, and the second,  the  limitations  the decision imposes on the ability of U.S. states to regulate, now that the feds cannot – or may not- do so in the absence of further congressional action.

But before  I turn to those issues,, permit me an aside: noting once again the continuing consequences of the Tumpa administration’s fierce focus on filling vacant Article III judgeships – e.g. those offering lifetime tenure –  as I posted about in real time multiple times. Trump et al moved to seat judges who would  implement its regulatory agenda – and not just the three headlines at the Supremes, but also al lower federal district and appeals courts. Contrast that record with that of the hapless Democrats, who other than flooding my in-box with fund-raising appeals- especially post-Dobbs – still don’t seem to grasp the importance of  confirming quickly and efficiently congenial judges. Instead and incredibly, Biden seems to have cut a deal to seat a judge whose past record contradicts the Democratic pro-choice agenda (ee  ‘Indefensible’: Outrage as New Reporting Shines Light on Biden Deal With McConnell)

I also note here that not only did the current small c ‘conservative Supreme Court rely on a relatively novel legal theory  – the ‘major questions’ doctrine –  in which the Court affirmed that in certain extraordinary cases, Congress must provide more explicit authority for agency rule-making – which the Court held in the West Virginia case Clean Air Act did not on its face provide. Thus somewhat ironically, the Court struck down agency rule-making, based on a relatively recent legal theory, putatively in line with originalist Constitutional thought.

Even more outrageously, the Court didn’t actually have, at least by my reading – and consistent with Justice Elena Kagan’s dissent – have a live case or controversy it needed to weigh in on.  The EPA’s 2015 Clean Power Plan rule had been put on hold in 2016 by the Court in response to a challenge by several states and private parties, and in 2019, the Trump administration replaced that ePA rule with the Affordable Clean Energy Rule. Both of these plans were vacated by a 2019 decision by the United States Court of Appeals for the D.C. Circuit, which had sent the case back to the EPA for additional proceedings – yet to be concluded (see SCOTUS blog,Supreme Court curtails EPA’s authority to fight climate change) for further detail). So the Court could have sent this back to the EPA to sort out the mess – and perhaps enact  a viable climate change policy – before issuing a decision.

Not Agreement Capable

What are the implications of the latest Supreme Court decision at the global level?   At the global level, the Biden administration has well and truly not only dropped – but lost –  the ball. No one seems to be paying necessary attention to the climate change issue.  Instead, the focus on Ukraine – and economic sanctions –  has left climate change considerations to the side. Thus leaving the planet in peril. I only point out here that if, and that’s a very big IF, a sane and sensible administration were to step in, and implement a serious climate change agenda, at both domestic and international levels, this latest decision would prove to be serious impediment to the details of further action.

Climate Change Regulation at the State Level

The U.S Supreme Court is now clearly implementing the laissez faire regulatory agenda of the Republican Party. But given the U.S. has a federal system, with both states and the federal government having overlapping and separate regulatory authority, perhaps the climate change regulatory situation  is not as dire as it seems to scene? California and New York, for example, have implemented more robust and pro-active climate change regulations.  Other   states might step in to regulate where the feds fear to tread, at least within their borders?

Alas, there’s scant possibility that collective state actions might mitigate the impact of this latest Supreme Court decision. Per the Hill, The fragility of state regulation after West Virginia v. EPA:

The impact of the court’s ruling on federal agency authority and power cannot be overstated. But an equally important consequence, albeit one that has received far less attention, is the transformative effect the ruling could have on state regulatory programs. Because state regulatory authority is often tethered to standards created by Congress or federal agencies, the diminution of federal regulatory authority promises to destabilize state regulation as well. Countless state regulatory programs can be considered fragile because they regulate by incorporating federal statutes or regulations into state law. If these federal schemes are read exceedingly narrowly, as the court’s opinion heralds, then the state regulatory programs tied to them will be imperiled as well.

Consider the relationship between state regulatory programs and Section 111 of the Clean Air Act, the provision read narrowly in West Virginia v. EPA. An examination of state air quality standards reveals that most states specifically incorporate by reference parts of Section 111 into their own statutes and regulations. Some states incorporate federal law directly, providing that the EPA’s Section 111 determinations are part of state law. Other states incorporate the EPA’s Section 111 determinations as a benchmark for state law, providing that state air quality standards may not be less stringent than those promulgated by the EPA. Still other states require their environmental agencies to promulgate rules similar to federal standards made pursuant to Section 111. And some states even provide that related state regulation is no longer effective if federal rules made pursuant to Section 111 are invalidated.

Because so many state statutes and regulations depend on the validity of Section 111 and the regulations promulgated under it, the court’s opinion in West Virginia v. EPA not only drastically limits federal authority, it also has the effect of imperiling the many state regulatory programs that depend on federal standards for their existence.

And, of course, Section 111 is just an example. Countless state regulatory programs are tethered to federally created standards, ranging in subject matter from food and drugs to banking to labor, among many others.

As a result, the court’s opinion strengthening the major questions doctrine threatens to leave numerous fields underregulated not only at the federal level, but also at the state level.

So it goes.

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