by Mia DiFelice and Angie Aker
Since the 1970s, the Clean Air Act has protected us from a host of environmental pollutants. Does the Clean Air Act allow the EPA to create rules that reduce carbon emissions from power plants? It’s an easy “Yes!” for most of us, which is why the EPA announced the Clean Power Plan to transition away from dirty power plants in 2015. But it’s a resounding “No” from an industry that prefers to run unchecked. That’s why a group of attorneys general sued over it, and the Supreme Court shelved the Plan before it could even go into effect.
This June, the Supreme Court issued a decision in West Virginia v. EPA. The case took on the never implemented and now irrelevant Clean Power Plan. The Court ruled that the EPA cannot use the Clean Air Act to regulate power plants’ climate emissions by mandating an industry transition to cleaner energy. In its ruling, the conservative supermajority on the bench has yet again shown their hand. These activist justices are using their position to push corporate interests, while eliminating a vital tool against climate change.
The Court’s Decision Is A Threat to Climate Action
Laws like the Clean Air Act are intentionally broad to allow expert agency regulators to adapt to new issues and tackle new problems. This is especially important for issues like pollution and, of course, climate change. Our recent history has made it clear — climate action is now too urgent to wait on action from a gridlocked Congress.
The fight for sweeping climate action is far from over, but WV v. EPA will make such action all the harder. The ruling endangers the Biden administration’s goal to decarbonize U.S. electricity by 2035. This is especially concerning because power plants are our second largest source of climate pollution. On top of that, our largest emitter, transportation, can only decarbonize if we have the clean electricity to power it. This decision makes emissions regulations — as well as other, future environmental regulations — all the more vulnerable to judicial overreach.
We Have Major Questions About The Court’s Logic
The Court justified its decision by relying on the so-called “major questions doctrine.” This doctrine suggests that regulations are invalid if they address “major” political and economic issues and Congress has not explicitly told agencies how to act. By relying on this doctrine, the Court’s decision in WV v. EPA signals that future EPA rules — and actions from any other agency — are at risk.
But the major questions doctrine has a murky history and a supreme lack of logic. It flies in the face of so-called “textualism,” which conservative judges have relied on for decades to justify strict readings of statutes. This framework for interpreting law focuses on the text of the law itself. But as Justice Elena Kagan wrote in her dissenting opinion on WV v. EPA, “The current court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”
The doctrine also lacks any kind of test or threshold. And since the Court has not agreed on what counts as a “major question,” legal scholars point out that anything can be a major question if the justices on the bench deem it so. In short, the doctrine is a judicial power grab, encroaching on both Congress and the Executive branch. It threatens agencies’ ability to do their jobs — that is, implementing our most important laws.
Conservatives Captured The Court, And They Won’t Let Go Anytime Soon
For decades, conservative groups and funders — many backed by fossil fuel money — have worked to transform our judicial landscape. The same groups and funders supported the attorney generals suing in WV v. EPA; the campaigns that helped nominate and confirm five of SCOTUS’s current conservative supermajority; and dozens of other federal cases against climate policies.
One such group is the Federalist Society, a national radical rightwing legal organization. All of the Republican-nominated justices on the bench have been either members of the Federalist Society or endorsed by it. The Society is funded by the likes of Chevron, Koch Industries and an array of conservative billionaires. Likewise, WV v. EPA was supported by the Republican Attorneys General Association, which is funded by our country’s biggest fossil fuel companies and coal executives.
WV v. EPA is the latest in a string of Supreme Court decisions from the Republican-nominated majority on the bench. These decisions quash Constitutional rights, public health and safety measures and decades-old precedents. WV v. EPA is part of the same antidemocratic judicial movement that has devastated our fundamental rights to bodily autonomy, our Fifth amendment rights, states’ ability to enact gun violence protections and more.
And it likely will not be the last; legal experts expect that WV v. EPA will affect regulations on everything from consumer protection, to workers’ safety, to public health. When the Court returns to session in October, it will decide a slate of environmental cases through the same lens — further jeopardizing our right to a livable planet.
Our Fight For The Climate Is Far From Over
WV v. EPA underscores our urgent need for climate policies and federal action. The decision, while distressing, does not eliminate the EPA’s authority to regulate greenhouse gas emissions. The Biden Administration must issue the strongest rule possible to regulate climate pollution. Congress must also step up to the plate to stop oil and gas exports and new fossil fuel development. At the same time, states must pursue the strong climate policies that we need.
Food & Water Watch has been in this fight for 17 years. We will continue pressuring agencies and elected officials at all levels of government for climate action. We cannot afford to do anything else.
Everyone needs to know what’s at stake.