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Scholars Differ on Possible Impact of High Court’s EPA Ruling

Tim Shaw  

Tim Shaw  

Following the Supreme Court’s ruling that U.S. government agencies can’t impose sweeping policy-driven regulations without explicit congressional approval, law professors expressed differing levels of concern over the decision’s implications for government administration.

In a 6-to-3 decision, the court on June 30 ruled in West Virginia v. EPA (2022 WL 2347278) that the Environmental Protection Agency lacks authority under the Clean Air Act to limit carbon emissions at power plants by requiring that producers transition to cleaner, renewable energy. The decision handed a win to a 20-state coalition led by West Virginia as well as several pro-coal industry groups.

The majority opinion by Chief Justice John Roberts, to which the other conservative justices joined and the liberal bench dissented, took issue with the EPA’s attempt to implement significant policy objectives.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” the majority opinion read.

Roberts invoked what’s known as the “major questions doctrine.” It dictates that if Congress didn’t set out a clear statement when crafting legislation, a federal agency can’t adopt its own regulatory framework. In this case, “it is not plausible” the EPA received Congress’ blessing, the opinion read.

At the core of the case was the Clean Power Plan (CPP) proposed by the EPA under Section 111(d) of the Clean Air Act. Drawn up during President Barack Obama’s second term, the CPP sought to determine the “best system of emission reduction” through three building blocks. The first was aimed at improving heat rates at coal plants to help coal burn more cleanly. The second two would cap emissions limits and require plants in each state to, by specified target years, move away from coal to natural gas, and then again to wind and solar power.

The Supreme Court stayed the proposed CPP in 2016 and it never took effect. Under Obama’s successor, Donald Trump, the EPA scrapped the CPP altogether, repealing and replacing it with the Affordable Clean Energy (ACE) rule. It was focused more narrowly on operations at existing plants rather than mandating industrywide changes in energy sources.

The D.C. Circuit vacated the CPP repeal and the ACE rule in 2021, concluding that Trump’s EPA relied on a fundamental misinterpretation of the Clean Air Act and that the CPP was within the Obama-era EPA’s purview under Section 7411 of the Clean Air Act. With neither proposal in effect, President Joe Biden signaled his administration’s intention to draft a new emissions rule.

Biden, who was vice president at the time the CPP was introduced, tried to separate himself from his predecessor’s plan, but the high court was unconvinced that the administration wouldn’t simply resurrect the CPP in another form. Roberts used this as justification for the justices to hear the case, though the government argued that the court lacked judicial standing.

By relying on the major questions doctrine, the decision could have long-lasting consequences for rulemaking by other federal agencies. Blake Emerson, a professor at the UCLA School of Law, told Checkpoint that the majority opinion “is so broad that it could conceivably cover any other number of administrative regulations. Any regulation that raises a ‘major question’ without explicit statutory authority may be vulnerable.”

While tax regulations have historically enjoyed deference from the courts, they are “not necessarily immune” to the fallout of the EPA ruling, Emerson said.

Appearing on NPR on July 5, Emerson said the Administrative Procedure Act is a “safeguard” that exists to ensure that agencies are thorough in their rulemaking. By publishing proposed regs in the Federal Register and inviting public comments as part of a process that can take months or years, agencies can be held accountable. Emerson said the court’s current makeup is “fairly hostile” to government regulation of private businesses and is “trying to tamp down on the executive branch’s ability to do that.”

Daniel Walters, an associate professor at Texas A&M University School of Law, is less worried the decision will spill over to other agencies’ normal procedures. He told Checkpoint that while the decision “greatly politicizes judicial review” of regulatory disputes, “the vast majority of run-of-the-mill agency actions are probably not particularly imperiled.”

This includes the IRS, according to Walters, who said that as long as the agency “does not venture into this kind of political thicket and go beyond its historical domain and expertise, judicial review is likely to remain largely the same as it was before.”

Walters co-wrote a July 5 blog post offering some reassurance that despite the usage of the major questions doctrine in the West Virginia case, other agencies can avoid scrutiny by the courts by not being as aggressive as the EPA was with its ambitious emission-limits efforts.

“The worst mistake agencies can make is to assume that everything they do is likely to be scrutinized by a hostile judiciary,” Walters wrote in the post, along with Todd Phillips of the liberal Center for American Progress. “That assumption is simply not true, and the conservative Supreme Court majority has given them an opening to exploit that fact by formulating the doctrine the way it did. It is not illegal for agencies to push the envelope until the Supreme Court says it is.”

 

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