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Supreme Court Hamstrings Power-Mad Federal Bureaucrats

Chief Justice John Roberts
Chief Justice John Roberts / Getty Images
• June 30, 2022 10:55 am

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The Supreme Court on Thursday declared the Obama-era Clean Power Plan unlawful, dealing a major blow to the power of federal bureaucrats.

The Court said agencies must have crystal-clear authorization from Congress before crafting sweeping regulatory changes. The decision heralds the arrival of a new era of judicial scrutiny of federal agencies that are accustomed to operating with practically no oversight from judges.

Chief Justice John Roberts delivered the majority opinion for a 6-3 Court, while Justice Elena Kagan led the liberal trio in dissent.

"Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution to the crisis of the day," Roberts wrote. "But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation."

The decision is the latest setback to President Joe Biden’s sputtering climate change agenda. His $2.2 trillion climate and social spending bill is moribund in Congress due to opposition from moderates in his own party. And Russia's invasion of Ukraine forced the administration to step up exports of natural gas to Europe, hoping to wean allies of their dependence on Russian oil. Environmentalists opposed that step for fear it will expand domestic drilling.

Thursday’s case has its roots with the Obama-era Clean Power Plan, which was meant to swap coal-burning power plants with green energy by setting stringent caps on carbon emissions from energy providers. Though the Trump administration ditched the scheme before it took effect, power companies, red states, and environmentalists have clashed in the intervening years over the scope of the agency’s power.

As is increasingly the case with ideologically fraught disputes, the Biden administration urged the Court to toss the case on technical grounds. The original Clean Power Plan has been on a shelf for years, and Biden’s EPA is at work on a new climate plan it’s expected to unveil later this year. Judicial intervention at this point would be inappropriate, government lawyers argued.

Tech giants like Google and Apple weighed in with amicus briefs backing the power plan.

The biggest question in the case was whether the Clean Power Plan violated the "major questions doctrine." That rule holds that Congress needs to be crystal clear when it's assigning an agency powers of "vast economic and political significance."

Red state litigants said Congress never meant to give the EPA authority to fundamentally rework the nation’s power grid when it passed the Clean Air Act in 1970. At a minimum, they argued, it’s not obvious that Congress did so, and agencies must have unambiguous authorization when crafting such ambitious programs.

The majority agreed. Writing for the Court, Roberts explained the Clean Air Act provision the EPA invoked has historically addressed specific emitters. It has never once served as a basis for redesigning the entire power grid.

"In arguing that [the Clean Air Act] empowers it to substantially restructure the American energy market, EPA claimed to discover in a long-extant statute an unheralded power representing a transformative expansion in its regulatory authority," Roberts wrote. "It located that newfound power in the vague language of an ancillary provision. Given these circumstances, there is every reason to hesitate before concluding that Congress meant to confer on EPA the authority it claims."

Kagan accused the conservative justices of betraying their text-based approach to interpreting law in her dissent. The Clean Air Act gives the EPA ample authority to regulate polluters, she wrote, so the Court made up a new rule to reach its preferred result.

"The current Court is textualist only when being so suits it," Kagan wrote. "When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards."

Justice Neil Gorsuch responded in a separate opinion, and needled the dissent for casting climate change as an urgent problem. True though that may be, he wrote, it only goes to show that the Clean Power Plan counts as a "major question" that needs unmistakable grounding in the law.

"As the dissent observes, the challenged action before us concerns one of the greatest challenges of our time," Gorsuch wrote. "If this case does not implicate a question of deep economic and political significance it is unclear what might."

Though green energy policy doesn’t register as a top concern for most voters, it’s a priority for young progressives. Thursday’s decision risks demoralizing that voter bloc, which has already turned sharply against Biden given what they see as his failure to deliver.

The case is No. 20-1530 West Virginia v. EPA.

Update 4:30 p.m.: This article has been updated.