The Supreme Court just made it harder for President Biden, and any future president, to fight climate change using executive power. The decision also limits federal regulation more broadly.
In the most important climate case in 15 years, the justices voted 6-3 to sharply limit the Environmental Protection Agency’s authority to regulate carbon pollution from the nation’s power plants. Power plants are the largest source of greenhouse gas pollution and produce one quarter of US emissions.
The consequences for climate progress are serious, but the case, West Virginia v. EPA, has far-reaching implications beyond climate change. The court’s reasoning could restrict federal regulation across agencies, making it more difficult to protect consumers, set standards for health and safety, and regulate financial markets, among other things.
The ruling settles a longstanding dispute over what the Clean Air Act means when it directs the EPA to set pollution standards using “the best system” of emissions reduction. The court’s narrow reading bars the agency from setting standards based on the potential to substitute natural gas and wind and solar power for coal to generate electricity, the fastest way to drive down emissions. EPA now must use other measures.
Traditionally, courts give agencies substantial discretion to interpret broadly worded statutes Congress delegates to them within their areas of expertise. The Supreme Court acknowledged this principle in a 1984 case, Chevron v. Natural Resources Defense Council, noting that Congress entrusts implementation to agencies who are more expert than courts.
In Thursday’s decision, the court ignored that precedent and embraced a radically different approach called the major questions doctrine, which holds that Congress does not authorize federal agencies to adopt regulations of major social and economic significance using broad legal language. The major questions doctrine displaces the traditional rule that courts will defer to agency interpretations of the statutes they are charged with administering. In practice, it means that federal agencies cannot adopt significant rules to respond to unforeseen challenges unless Congress anticipated their application of the statute and explicitly authorized it in advance.
That expectation is unrealistic, as the court surely knows. Congress frequently drafts broad statutes precisely because it cannot be prescient. For example, Congress has directed federal agencies to ensure that drugs are “safe,” set air quality standards that adequately “protect the public health,” and prevent “fraudulent, deceptive, or manipulative” practices in the securities markets, fully expecting the agencies to make fact-intensive decisions using their expertise and considering relevant technological, economic, and scientific evidence. In a rapidly changing world, federal agencies need some flexibility to address new problems under general legal mandates.
In addition, Congress already has many tools to rein in federal agencies when it thinks they overreach. An expedited process allows Congress to disapprove agency rules before they become final by simple majority vote, blocking them from ever taking effect. Congress can also hold federal agencies to account by holding oversight hearings, cutting their funding, withholding confirmation of political appointees, and, if necessary, amending the agency’s statute.
An expected surge of litigation will challenge agency rules anchored in broad statutory authority. Can the Department of Transportation establish requirements for driverless cars under a 1966 vehicle safety law that was written without them in mind? Can the Consumer Financial Protection Bureau bar discrimination in the provision of financial services under a statute empowering them to prevent “unfair, deceptive, or abusive” acts in connection with consumer financial products? And can the Centers for Disease Control and Prevention require masks in airports and airplanes under a 1944 law giving the agency broad authority to curb the spread of communicable disease by adopting rules that “in [its] judgment are necessary”? A Florida judge recently invoked the major questions doctrine to say no, holding that if Congress intended to empower the CDC to implement measures like mask mandates, it would have clearly said so.
Virtually any federal regulation of any consequence can be deemed “major” enough to some industry, sector, or market for them to protest that Congress must speak clearly if it wants the agency to act.
Limiting federal agency power may not be a problem for Republican administrations, which are typically opposed to regulation, but it would severely hamstring Democratic ones, which tend to support regulation to address social and economic problems.
The West Virginia case is a setback for climate regulation certainly, but its consequences are far more sweeping. The court’s embrace of the major questions canon could severely impede the government’s ability to regulate in the face of modern challenges. It would also profoundly shift power from the executive branch to the courts.
By ignoring the possibility that Congress means what it says when delegating broad authority, the court simply arrogates power to itself.
Jody Freeman is a professor at Harvard Law School. She was counselor for energy and climate change in the Obama administration and is on the board of ConocoPhillips, a producer of oil and gas.