Looking into the horizon of 2022, it’s not super droughts or unexpected snowstorms that have U.S. environmental activists terrified, it’s a Supreme Court case that’s scheduled for oral arguments at the end of February.
At the heart of West Virginia v. Environmental Protection Agency is a challenge over the extent to which Congress can delegate regulatory power to the executive agencies. The great fear is that the new super conservative majority on the court is open to taking radical action that will undo nearly a century of common practice.
“There is a possibility that the court can write an opinion,” says Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, “that really reflects a core challenge to the fundamental basis of the regulatory state — for the ways in which our federal bureaucracy or federal agencies have evolved and operate.”
In other words, if the Supreme Court applies the most conservative interpretation of the constitutional challenge, it could entirely knock out the system by which we protect air and water in the U.S. — not to mention scores of other federal laws.
The roots of this case go back to the now abandoned efforts by the Obama administration to regulate the greenhouse gas carbon dioxide through the Clean Power plan – which assigned each state a goal for reducing carbon emissions. The EPA said it had the authority to do that through the Clean Air Act of 1970, which allows regulators to determine the “best system of emissions reductions” for power plants.
Several plaintiffs, including West Virginia, sued (four cases were consolidated into the one coming before the court). There are essentially two lines of attack. One argument is that the EPA overreached – i.e. it was entitled to regulate emissions from power plants, but instead tried to regulate the entire energy and grid system. The second, more profound, challenge is that it would be unconstitutional for Congress to give the EPA such an open-ended grant of authority under a doctrine known as nondelegation.
The Clean Air Act, now more than 50 years old, is considered by most people to be one of the most successful pieces of legislation in U.S. history. Several studies have credited the law not only with greatly reducing smog and saving countless lives, but also with being a good economic investment by reducing sickness and increasing productivity. One only has look to the brown skies above New Delhi to realize how gritty America might be without it.
But like many federal laws, it contains a certain amount of deliberate vagueness. Lawmakers wanted clean air but left the federal regulatory agency in charge of environmental pollution, the EPA, to decide what kinds of pollutants should be regulated and by how much. The law basically requires that the agency use the best available science in making that determination. The EPA employs a phalanx of biologists, chemists and air pollution experts to do just that.
But a conservative theory of jurisprudence argues that Congress does not actually have the constitutional right to hand so much regulatory authority over to the executive branch. Regulation, according to such a theory, is a surreptitious form of law making, a power reserved for the legislative branch.
This nondelegation doctrine, which was used by a very conservative Supreme Court against the New Deal in the 1930s, has been dormant for a century. In the meantime, enormous state and federal bureaucracies have developed around this system of law. Nevertheless the new conservative majority of the Supreme Court, most notably Justice Neil Gorsuch, have expressed sympathy for it publicly.
An added concern is Gorsuch’s tangled history with the EPA. Gorsuch’s mother, Anne, was EPA agency administrator under President Ronald Reagan. Her tenure included cutting the agency’s budget and vastly decreasing enforcement actions against polluters. Eventually, she resigned under pressure after being held in contempt of Congress for failing to turn over subpoenaed records related to misadministration of superfund sites.
Since the lawsuits no longer are about an active law or regulation, court watchers see a particularly wide range of possible outcomes. The best for the Clean Air Act would be simply for the court to say in essence that it made a mistake in taking the case since the regulation is no longer live and therefore not an issue. But this court has showed itself willing to upend major precedent.
“I would say the environmental advocates are certainly keeping their eyes closely trained on what the Supreme Court does here,” said Burger.