Having taken on abortion and gun rights in controversial decisions earlier this month, the Supreme Court today turned its sights on another target of its conservative justices, the regulation of greenhouse gas emissions driving climate change. On the last day of the term, the court decided West Virginia v. Environmental Protection Agency, taking on an EPA rule — the Clean Power Plan (CPC) — that had been adopted in the Obama administration to reduce climate emissions from the electric power sector.
The court reached out to decide this case even though the plan had never been in effect, due to a stay entered by the court soon after it was adopted; even though the emissions reductions that would have been required by the rule have already been achieved voluntarily by the power sector; and even though the agency informed the judiciary that it did not intend to enforce the rule in the future.
The court did so to signal its intent to impose stricter limits on future agency actions, particularly those involving “major questions,” and to chasten EPA’s efforts to take effective action on climate change under its existing statutory authorities.
The EPA based the CPC on Section 111(d) of the Clean Air Act, which authorizes the regulation of emissions of from certain categories of existing stationary sources, in this case, coal- and gas-fired electric utility plants. The statute requires EPA to impose emissions limitations achievable at these facilities with “the application of the best system of emissions reduction.”
The agency considered technology fixes that could be imposed on a plant-by-plant basis, but it rejected this “technology-based” approach because it would lead to only small reductions in an industry that was a major contributor to national greenhouse gas emissions and because the utility sector could achieve much larger and more cost-effective reductions by changing its fuel mix (from coal to natural gas and from fossil fuels to renewables), known as “generation shifting.” Reading the statutory phrase “best system” to authorize a systemic approach to utility emissions, EPA put measures in place to move the industry as a whole to lower carbon emissions.
In his opinion for the court (a 6-3 majority), Chief Justice John Roberts invoked the court’s nascent “major questions doctrine” to reject EPA’s reading of Section 111 as authorizing, in his words, the “restructuring the Nation’s overall mix of electricity generation.” Although its parameters are fuzzy, the major questions doctrine posits that in certain “extraordinary cases,” courts will cancel an agency’s interpretation of its authority in the absence of a clear expression of congressional intent to support that interpretation. In invoking the doctrine in this case, the court cites a grab bag of factors — including the economic impact of the CPC (restructuring “the American energy market”), the “vague” language and relative obscurity of Section 111(d), the recentness of the agency’s interpretation, and even Congress’s failure to adopt comprehensive legislation limiting greenhouse gas emissions from utilities. The court’s mobilization of this protean doctrine allowed it to dispense with the deference that would normally be accorded the agency’s interpretation and to impose its own narrower view as to permissible readings.
Justice Elena Kagan’s dissent demonstrates that a careful, textualist reading of Section 111(d) provides ample support for the CPC’s approach. Her dissent also effectively argues that the reasons for the court’s skepticism, grouped under the general heading of “major questions doctrine,” either do not or should not apply to negate the agency’s reading.
Because the CPC is effectively already a dead letter, the court’s decision is of little immediate consequence. And the court makes clear that its holding is limited. EPA is still free to consider a range of alternative interpretations; the court even leaves open the question of whether Section 111(d) refers exclusively to plant-specific measures. But which alternatives might pass legal muster, the agency is left to guess. More generally, the effect of the decision, if not its intent, is to freeze EPA in its climate change tracks — to discourage it from taking steps it concludes are necessary and warranted to mitigate the nation’s and the world’s greatest environmental challenge.
The Clean Air Act is notoriously complex, and subject to competing readings; given the scope and complexity of climate change, any effective agency response will require innovative approaches; and, for similar reasons, any effective action will have broad economic effects. Yet the statute, under the court’s prior decision in Massachusetts vs. EPA, not questioned in the court’s ruling today, places climate change regulation squarely in the agency’s wheelhouse. What’s a responsible agency to do?
Cannon Is the Blaine T. Phillips Distinguished Professor of Environmental Law Emeritus at the University of Virginia School of Law and the author of “Environment in the Balance: the Green Movement and the Supreme Court.”