Tue. Jan 31st, 2023

In striking down an Environmental Protection Agency plan to reduce carbon emissions from power plants, the Supreme Court issued a decision whose implications go beyond hobbling the government’s ability to fight climate change.

Many other types of regulations might now be harder to defend.

The court’s Republican-appointed supermajority used the case to entrench and strengthen the so-called major questions doctrine. Under that interpretation of the law, a court can strike down an agency’s regulation if it has significant economic effects and Congress was not explicit enough in granting that authority.

“In certain extraordinary cases,” Chief Justice John G. Roberts Jr. wrote, the court needed “something more than a merely plausible textual basis” to convince it that an agency has the legal ability to issue regulations.

“The agency instead must point to ‘clear congressional authorization’ for the power it claims,” he wrote.

In striking down the E.P.A.’s so-called Clean Power Plan, which would have required plants to reduce their carbon emissions or fund a shift to renewable energy, the court signaled that the judiciary would apply a strict version of that doctrine.

And that, legal specialists said, meant the court’s conservative majority has given business interests a powerful weapon with which to attack other rules that cut into their profits. Companies can argue that Congress was similarly not clear enough in delegating authority to whatever agency devised the regulation being challenged.

“This decision solidifies a doctrine that will be a cudgel against administrative agencies looking to exercise their statutory authority to respond to new or changing problems,” Leah Litman, a University of Michigan law professor, wrote on Twitter.

The E.P.A. ruling had been foreshadowed by short, unsigned rulings last year in which the Supreme Court blocked the Centers for Disease Control and Prevention’s moratorium on evictions aimed at preventing overcrowding during the coronavirus pandemic, and the Occupational Safety and Health Administration’s requirement that large employers get their workers vaccinated or provide frequent testing.

But both of those decisions involved arguably novel exercises of authority by government agencies trying to address the pandemic emergency: The C.D.C., a public health agency, was getting into housing and economy policy, and OSHA, a workplace safety agency, was getting into public health policy.

Thursday’s ruling directly involved the E.P.A.’s mission to curb pollution of harmful substances — which the court previously ruled included carbon dioxide emissions. Moreover, the Clean Air Act empowers the agency to devise the “best system of emission reduction.” Even so, the majority ruled that its text fell short of the necessary standard.

Still, all three of those disputes involved major rules with broad economic implications. It remains to be seen how “extraordinary,” to use Chief Justice Roberts’s word, a challenged regulation has to be for the Supreme Court majority to bring its strict understanding of the major questions doctrine to bear against it.

In theory, a robust vision of the doctrine does not necessarily subtract from the government’s ability to act when a new problem — or a better way of solving an old one — arises. Rather, it merely shifts some of the power and responsibility for doing so from the agencies to Congress.

For example, lawmakers could theoretically enact a new law explicitly declaring that the E.P.A.’s power to curb air pollution under the Clean Air Act includes regulating carbon dioxide pollution from power plants in the way the agency had proposed. For that matter, Congress could even enact a bill directly requiring such a system for limiting emissions.

As a matter of political reality, however, agencies’ issuing new rules based on old laws is often the only way the government remains capable of acting.

Congress has become dysfunctional, sometimes struggling to pass even basic budget bills that keep the government from shutting down. And the ideology of the contemporary Republican Party, combined with the Senate’s filibuster rule, means that it is very difficult for Congress to enact new laws expanding regulations.

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