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The logic games behind today’s Supreme Court ruling on power regulation

As expected, the Supreme Court handed down a ruling today that limits the EPA's authority to regulate carbon dioxide emissions. Needless to say, liberals were appalled:

Richard Lazarus, a Harvard environmental law professor, said in a statement that by insisting that an agency “can promulgate an important and significant climate rule only by showing ‘clear congressional authorization’ at a time when the Court knows that Congress is effectively dysfunctional, the Court threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all: climate change.”

I haven't said much about this until now because I'm conflicted about it. On the one hand, we are literally frying our planet and this is hardly the time for courts and legislatures to be playing stupid logic games about what we're "allowed" to do about it.

On the other hand, we are a nation of laws, and interpreting those laws often becomes a logic game. In this case, the primary question is the breadth of EPA's authority under the Clean Air Act to regulate new (and upgraded) power sources. Can they regulate only the power sources themselves, or can they mandate a shift in power sources (from coal to natural gas, for example). In dissent, Elena Kagan is clear:

The majority says it is simply “not plausible” that Congress enabled EPA to regulate power plants’ emissions through generation shifting. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the “best system of emission reduction” for power plants. The “best system” full stop—no ifs, ands, or buts of any kind relevant here.

By contrast, the majority opinion says this language is a mere "gap filler" (it's contained in a definition section that precedes the statutory language) and that the Clean Air Act nowhere authorizes generation shifting. What's more, history shows that the EPA knows this perfectly well:

Prior to 2015, EPA had always set Section 111 emissions limits based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly—never by looking to a “system” that would reduce pollution simply by “shifting” polluting activity “from dirtier to cleaner sources.”

Their conclusion is that generation shifting is too big a deal to infer from throw-away language. If this is what we want to do, it needs authorization from Congress, not a federal agency feverishly parsing generic language to give itself huge, highly specific new authority.

The EPA wants less of this and more natural gas.

This doesn't strike me as unreasonable, though it's obviously tricky to figure out just how broad a grant of authority Congress gave to EPA in this case. Unfortunately, the liberal position on this is done no favors by the Lazarus argument: namely that the Supreme Court knows Congress is paralyzed right now, so they have to allow EPA to step in and take action.

This is sophistry, and no court in the world would pay any attention to it. On the contrary, it would be taken for what it is: a tacit admission that EPA doesn't have the authority it wants, but we should all agree to pretend otherwise because the stakes are too high to waste time with the doofuses in Congress. Like it or not, this is never going to fly.

As many legal observers have pointed out, this case is not really about the EPA or about climate change. (In fact, the EPA plan at the core of the case has been on hold for a while as the Biden administration crafts its own plan.) It's about how much deference we should pay to federal agencies who are exercising authority delegated to them by Congress. Liberals generally want agencies to have lots of interpretive authority while conservatives want to rein it in. This case is yet another example of conservatives reining it in.

The good news here is that, by itself, this case doesn't set any big new precedent—not that I see, anyway. Like last week's decision in American Hospital Association, it merely prohibits a specific action without taking a sledgehammer to current rules about agency deference in general.

The bad news is that the Court's conservatives are obviously working themselves up to swing that sledgehammer eventually. It's still unclear just how much wreckage they plan to leave behind when they're done.

39 thoughts on “The logic games behind today’s Supreme Court ruling on power regulation

  1. greggers

    Well now, if congress thinks the EPA has exceeded it's authority then all they have to do is pass legislation correcting things.
    Since they have not done so we must conclude they're OK with it.
    Easy peasy!

    1. KenSchulz

      I think that’s a perfectly good argument for strengthening, not weakening, Chevron deference. If Congress doesn’t like the way an agency or department of the Executive has interpreted a law, they can always amend it. Besides that, they can call the agency or department head before a committee to hash things out. There are other issues that arise between the legislative and executive branches that the courts prefer to stay out of; this is another.

      1. KenSchulz

        I mean, this is another area they should bend over backwards to stay out of. Note that the executive has in-house expertise of all kinds, and funding for outside experts, consultants and researchers. Congress has the Congressional Research Service, and can call experts of its choosing to appear before committees. The Court has law clerks. Yet in this case, the conservatives claim the expertise to determine what is a ‘major question’ concerning power generation and the environment. None of them is an environmental scientist, or toxicologist, or chemical engineer, or biochemist, or power systems engineer, or …. So let’s let the people that know the issues work it out.

    2. PaulDavisThe1st

      I don't think you want to live in a world where Congress is the only part of government that can decide that an administrative agency has behaved badly.

  2. Jasper_in_Boston

    Unfortunately, the liberal position on this is done no favors by the Lazarus argument: namely that the Supreme Court knows Congress is paralyzed right now, so they have to allow EPA to step in and take action.

    I dunno. Seems to me such a stance is perfectly in keeping with democratic values. That is, if a government agency is acting in good faith but oversteps its bounds, the eminently democratic solution of congressional action (Congress enacting legislation) is always available.

    We're terrified of majoritarian democracy in America from James Madison on down to the present.

    1. KenSchulz

      I don’t follow your argument. From the Court majority’s point of view, Lazarus is saying that unelected appointees and civil-service employees should act in place of Congress (since Congress is deadlocked on this issue). How is that democratic?

      1. Jasper_in_Boston

        I’m sure we can all think of egregious examples of bad faith executive branch overreach. This hardly seems an example of that.

        Absent such egregiousness, it seems to me the preferred method of shifting or fine-tuning policy should be for the democratically elected Congress to enact legislation. But the right wing would vastly prefer to have the courts do their dirty work.

        That’s the argument.

        1. KenSchulz

          Oh, I think WV v. EPA was wrongly decided, but Lazarus’ criticism is still weak. greggers has it right - if Congress doesn’t think it delegated this authority to EPA, it has the power to withdraw it; it’s a matter that the Legislative and Executive can perfectly well settle on their own.

          1. PaulDavisThe1st

            What's the role of individual citizens (or, sigh, yes, corporations) who believe that an agency has exceeded it's mandate?

            1. Jasper_in_Boston

              The role of the citizen should be to take it to court, no doubt.

              And the court should decline to get involved unless the overreach is truly egregious. At which point they can rally their fellow citizens to elect officials who will modify the policy.

              Our courts are drunk with power. They simply can't resist the urge to meddle.

  3. OverclockedApe

    I'm sure the new majority can respect precedence and be rationa...

    It’s Hard to Overstate the Danger of the Voting Case the Supreme Court Just Agreed to Hear
    https://slate.com/news-and-politics/2022/06/supreme-court-dangerous-independent-state-legislature-theory.html

    Clarence Thomas suggests Covid vaccines are developed using cells of ‘aborted children’
    https://www.politico.com/news/2022/06/30/clarence-thomas-claims-covid-vaccines-are-derived-from-the-cells-of-aborted-children-00043483

    Sadly it's how hard they'll swing versus if.

  4. camusvsartre

    Sure Kevin--that must be right. The EPA can't address the most important environmental issue of our time despite legislative language that clearly allows it--because when the legislation was written Congress didn't actually contemplate the type of solution chosen. No chance that Congress might have anticipated new challenges that weren't yet apparent and thus chose to provide the EPA with broad powers to meet these new issues. This is a broadside shot at the administrative state--long a target of the Federalist society whose hand picked Justices now control the Court.

    1. Jay Smith

      IANAL, but this entire argument seems ridiculous. It's in black and white. The EPA is there to regulate emissions of any kind. If Oxygen turned out to be bad for babies, they could regulate that. And if it turned out that coal dust caused everyone to die at 39 from a horrible cancer, you can bet they would be blamed for not handling that and putting all the coal plants out of business. Citizens, our planet is beginning to stroke out. At 100% humidity, a human being will die at only 87 degrees. Some are saying that ocean acidification will destroy all marine life in 20 years. This is a DEFCON 1, and this regressive, Paleolithic, antediluvian Supreme Court just made it even harder to stop. They are literally murdering your children in front of you but you don't have the necessary imagination to visualize it. The law is the law, and a SC that says up is down and 1+1=3 needs to be stopped immediately. They are no longer a court, they are a rabid animal that needs put down.

    2. KenSchulz

      Yes, just as the writers of the Second Amendment should have specifically cited semiautomatic, breechloading rifles and pistols using cartridge ammunition instead of the vague ‘arms’, so we wouldn’t be limited to owning only muzzleloaders. Oh wait ….

  5. D_Ohrk_E1

    I see it as conservatives selectively applying deference and contextualism as needed to support its bias.

    They gave wide deference to Trump's Muslim ban, as you might recall, and that was based on a badly crafted EO and open statements about it being a Muslim ban.

    1. Spadesofgrey

      Any court structure does that. Nothing new under the sun. Nullification and end of court power is the endgame. It won't come from progressive, but anti-progressive, degrowther populists. The real shadow that makes a contard shudder.

  6. cld

    Now that they've gotten away with this conservatives will think any language in any law they don't care for is mere gap filler.

  7. golack

    SO2 was regulated via cap and trade.
    The CO2 non-regulation was set up in a similar fashion.
    Courts have previously ruled CO2 has to be regulated.

    The Supreme Court didn't rule to end the case. It sent it down to the trial judge who should have dismissed it since no such regulation exists.

    This court says it just wants to send it back to Congress, but....
    Has been dismantling voting rights.
    Has basically endorsed gerrymandering (at least the right kind of gerrymander).

    1. Spadesofgrey

      Gerrymandering???? Please. That goes to all states. Ohio is the least gerrymandered since 2002. Bet it doesn't help Democrats much. The party hasn't had total control of the legislature since 1990 and outside the Republican crisis in the 2006-8 period, hasn't come close. Your using gerrymandering as a excuse for people not voting pro- globalization/social liberal candidates.

  8. Rattus Norvegicus

    Another thing: Congress, via the Congressional Review Act, can tell an agency "whoa, you've gone too far" and invalidate a rule if it thinks that a rule has exceeded the mandate given to the agency in the enabling legislation.

    So what the hell was the court doing reaching down and taking a moot case to invoke the "major questions doctrine" (something that comes out of the fevered swamp of conservative legal theory) to axe our ability to regulate carbon emissions?

    1. aldoushickman

      This. What exactly is within the ambit of Clean Air Act section 111(d) in terms of inside-versus-outside-the-fenceline regulation is perhaps a good question for the courts (although one that should be analyzed under the _Chevron_ rubric). Instead, Roberts et al. came up with this nonsensical and terrifying "major question" doctrine, which is basically the Court saying that if they think something is a big deal, then probably it's illegal.

      This case may not be a big deal in terms of its direct impact on how the Clean Air Act is interpreted as pertains to the nonexistent Clean Power Plan (which, for the record, all states are ALREADY in compliance with, and so there would be no injury even if the rule did exist which it doesn't), but it's a very big deal in terms of the 6-3 conservative majority turning SCOTUS into some sort of star chamber/Iranian clerical council with the power to invalidate whatever it likes based on its own preferences.

      1. Jasper_in_Boston

        it's a very big deal in terms of the 6-3 conservative majority turning SCOTUS into some sort of star chamber/Iranian clerical council with the power to invalidate whatever it likes based on its own preferences.

        Yes. An unelected, parallel legislature that does the right's bidding.

  9. sturestahle

    When you finally had a president that at least was talking about handling climate breakdown…and when the supposedly sane majority was supposed to have the majority in the Congress
    Nothing or less than nothing happened
    The final proof of a nonfunctional political system
    Remember, my grandchildren are dependent on the biosphere America just decided to turn into a death trap
    A comment by a furious Swede

  10. Dana Decker

    I love all these legal arguments. There's only one conclusion possible, unlike mathematics, chemistry, engineering, computer science, and biochemistry.

  11. bokun59elboku

    Well, if you READ the case, it turns out worse than you write, Kevin. The court explicitly says an agency must have explicit authority for any action it takes.

    That is inviting wingsuits everywhere to sue over very federal decision. That means the FDA, OSHA, BLKM FAA....gee thanks.

  12. raoul

    Until recently, I never heard of the “major question” doctrine. Can someone elucidate? When was the terminology first use? Is this an invented right wing meme? Anyways, The Clean Air Act does not allow the government to regulate clean air, that sounds absurd.

    1. KenSchulz

      Here’s an NYT article on the topic: https://www.nytimes.com/2022/06/30/us/scotus-major-questions-doctrine.html
      From Alabama Association of Realtors v. Department of Health and Human Services:

      We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” the court said last year in an unsigned majority opinion that rejected the authority of the Centers for Disease Control and Prevention to ban evictions.

      That is, the courts will decide what actions have “vast economic and political significance”, though they are not economists, and politics is the domain of elected officials, thank you.

      1. raoul

        It sounds like an invented rule making with the explicit purpose of overturning regulations. When the AHCA was passed I recall right wingers complaining about the near 2000 pages in the bill implying that Congress was hamstringing the executive. If my memory is not faulty I recall an opinion by the Supremes where Congress cannot legislate that what belongs to the executive (“line item veto”?). The point is that the Supreme Court can nullify any action by any branch of the government based on its policy preferences: Congress passes a bill regulating carbon emissions with particulates per millions? That belongs to the executive. The executives regulates particulates per millions? Congress needs to step in. In other words, heads we win, tail you lose.

        1. KenSchulz

          From Article III, Section 2:

          In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

          Hmm Exceptions and Regulations - sounds like another reason to dump the filibuster.

  13. robaweiler

    I'm not buying it. Kevin ignores the fact that it was an extraordinary that the court took up the case at all. West Virginia and the other states had no standing whatsoever to bring a case to court. The rule was never put into effect and wasn't going to be. SCOTUS deliberately took it up to show that they would limit any regulatory body that ruled against currently wealthy and powerful interests. After this ruling, what is the chance that the EPA will try to regulate PFAS chemicals? Congress never specifically authorized them to do so, therefore, they can't.

    1. KenSchulz

      Yes. Abortion was always the most-discussed issue around Court nominations, but too little attention was paid to the Federalist Society’s litmus test for pro-business bias by Republican nominees.

  14. Ken Zeitung

    Continuing the theme here: Kevin is wayyyy understating the hit here. Given the current court, this is an invitation tocompanies to sue to pull back any regulation not explicitly mandated in the original act. It also implies that this is possible for any Federal regulation or action.

    1. Jasper_in_Boston

      It's also an invention for large corporations to venue shop: file suit where there's a right wing court who will be sure to cite this new precedent, thereby getting them released from the regulatory obligation that's costing them money.

  15. Crissa

    EPA rulings have always shifted usage from one type to another.

    The 'major questions ruling' is bullshit. It gives us no idea when Congress is overreaching their delegation.

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