The U.S. Supreme Court is the nation’s new climate czar | Fletcher McClellan

While the court’s decision in West Virginia v EPA weakens governmental climate efforts, the case may affect any congressional delegation of power to any executive agency

July 15, 2022 6:30 am

Coal piles outside of PacifiCorp’s Hunter power plant in Castle Dale, Utah (Image by George Frey, AFP, via Getty Images/The Conversation).

While most of the public’s attention focused on the U.S. Supreme Court’s recent rulings that removed abortion rights, expanded gun rights, and nearly erased the separation of church and state, the court’s decision in West Virginia v Environmental Protection Agency will have direct and lasting impact on the nation’s environment and economy.

At issue was the Clean Power Plan initiated by the EPA under the Obama administration, which attempted to reduce the amount of carbon dioxide released into the atmosphere by shifting the production of electricity from coal-fired power plants to natural gas plants and, ultimately, renewable energy sources.

Responding to the fossil fuel industry and states complaining of federal overreach, the Supreme Court decided the EPA did not have authority to shift polluting activity from dirtier to cleaner sources.

Writing on behalf of the six justices appointed by Republican presidents, Chief Justice John Roberts declared that the potential power to shut down coal plants was a “major question” that only Congress could decide.

Associate Justice Elena Kagan, speaking for the three Democratic-appointed justices in dissent, argued that Congress delegated authority to the EPA to respond to new environmental challenges.

Regulating carbon dioxide emissions, which contribute to global warming, was within EPA’s jurisdiction, consistent with Congress’s intent and practice to let expert agencies deal with scientific or technological issues, Kagan stated.

Unlike the court’s decision in FDA v Brown and Williamson Tobacco Corp. (2000), which held that Congress forbade the Food and Drug Administration from regulating tobacco products, there was no such prohibition on EPA.

Ironically, the Clean Power Plan never went into effect. The courts blocked Obama’s regulations and the Trump administration subsequently repealed them. Meanwhile, the share of U.S. electricity generated by coal fell dramatically from 53 percent in 1997 to 39 percent in 2014 – when the Clean Power Plan was developed – to 22 percent in 2021.

Clearly, the Supreme Court had something else in mind when it decided to rule on a moot issue.

There is legitimate concern over Congressional sidestepping. Nothing is stopping Congress from clarifying the authority of federal regulators.

States can provide more tailored solutions to environmental problems. California and New York are among several states that established ambitious targets for carbon reductions.

New York attributes part of its success to participation in the Regional Greenhouse Gas Initiative, or RGGI, created by 11 New England and Mid-Atlantic states to establish a cap-and-trade market for carbon dioxide. The program discourages use of fossil fuels by requiring CO2 producers to pay for pollution allowances.

After two years of fighting the Republican-controlled state legislature over joining RGGI, Governor Tom Wolf committed Pennsylvania to the consortium, starting July 1. Last week, however, Commonwealth Court blocked implementation at the request of Republican leaders and the influential fossil fuel industry.

Whether Pennsylvania will stay in RGGI is uncertain. Not only is Republican gubernatorial candidate Doug Mastriano opposed, but even Mastriano’s Democratic opponent, Attorney General Josh Shapiro, has distanced himself from the issue.

Unfortunately, air pollution does not respect state boundaries. States unconcerned about climate change can dilute other states’ efforts to reduce carbon in the atmosphere.

Pennsylvania, the second biggest natural gas producer and third largest coal-producing state in the U.S., is a possible weak link.

While the court’s decision in West Virginia v EPA weakens governmental climate efforts, the case may affect any congressional delegation of power to any executive agency.

How important is delegation to the legislative process? Only everything. According to one study, 99 percent  of all laws passed by Congress since 1947 involve delegation of responsibilities to the executive branch.

Delegation of Congressional power was a major issue between the Supreme Court and President Franklin Roosevelt during the Great Depression. In A.L.A. Schechter Poultry Corp. v U.S. (1935), a unanimous court struck down the National Industrial Recovery Act, a cornerstone of the New Deal, for delegating too much power to the president and industrial groups.

(Concurring in West Virginia v EPA, Justice Gorsuch wanted to apply the Schechter standard, much stricter on Congressional delegation than what Roberts settled upon.)

However, the court relented from Schechter in 1937 by approving the establishment of the National Labor Relations Board, signaling a judicial shift toward deference to federal agencies that continued through the Great Society of the 1960s into the 21st century.

Until last week.

Now, the Roberts “major questions” doctrine gives the conservative majority on the Supreme Court license to intervene on any federal regulation based on delegated power, past or present.

It doesn’t take a mastermind to figure out on whose behalf this court will intervene.

When it comes to government action on global warming, Justice Kagan said it best: “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.”

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Fletcher McClellan
Fletcher McClellan

Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may email him at [email protected], and follow him on Twitter at @mcclelef.