Supreme Court Aborts The Green New Deal, Strikes Down EPA’s Carbon-Emission Power Grab
Chief Justice Roberts for the 6-3 Majority – “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.” …. But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme ….”
Excerpt:
Maybe it’s not as big a decision in the public mind as the SCOTUS decisions this term on Abortion and the 2nd Amendment. But it’s a big one, bigly and big league.
The United States Supreme Court, in a majority Opinion by Chief Justice Roberts, just ripped the heart out of the Green New Deal agenda which was being carried forward not by act of Congress, but by administrative fiat through the Environmental Protection Agency.
The case is West Virginia v. EPA (Docket) where the Questions Presented were:
In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy-without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements?
That sounds dry, but it’s a big ****ing deal, as Politico noted it goes even beyond regulating carbon emissions and goes to the heart of the ever-expanding administrative state, How SCOTUS’ upcoming climate ruling could defang Washington:
The Supreme Court is expected to issue a ruling this month hobbling the Biden administration’s efforts to rein in greenhouse gases — but its impact could weaken Washington’s power to oversee wide swaths of American life well beyond climate change.
The upcoming decision on the Environmental Protection Agency’s climate oversight offers the conservative justices an opportunity to undermine federal regulations on a host of issues, from drug pricing and financial regulations to net neutrality. Critics of the EPA have clamored for the high court to do just that, by declaring it unlawful for federal agencies to make “major” decisions without clear authorization from Congress.
The Supreme Court and several Republican-appointed judges have invoked the same principle repeatedly during the past year to strike down a series of Biden administration responses to the coronavirus pandemic. Liberal legal scholars worry that the EPA case could yield an aggressive version of that thinking — unraveling much of the regulatory state as it has existed since the New Deal.
From the majority Opinion:
The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into the air. 84 Stat. 1683, 42 U. S. C. §7411(a)(1). That standard may be different for new and existing plants, but in each case it must reflect the “best system of emission reduction” that the Agency has determined to be “adequately demonstrated” for the particular category. §§7411(a)(1), (b)(1), (d). For existing plants, the States then implement that requirement by issuing rules restricting emissions from sources within their borders.
Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.
The question before us is whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.
Given these circumstances, our precedent counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach. To overcome that skepticism, the Government must—under the major questions doctrine—point to “clear congressional authorization” to regulate in that manner. Utility Air, 573 U. S., at 324. All the Government can offer, however, is the Agency’s authority to establish emissions caps at a level reflecting “the application of the best system of emission reduction . . . adequately demonstrated.” 42 U. S. C. §7411(a)(1). As a matter of “definitional possibilities,” FCC v. AT&T Inc., 562 U. S. 397, 407 (2011), generation shifting can be described as a “system”—“an aggregation or assemblage of objects united by some form of regular interaction,” Brief for Federal Respondents 31—capable of reducing emissions. But of course almost anything could constitute such a “system”; shorn of all context, the word is an empty vessel. Such a vague statutory grant is not close to the sort of clear authorization required by our precedents.
* * *
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.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.
What a fitting end to the term.
*****
Professor Jacobson is conservative professor who teaches at Cornell Law School.
Interestingly there are 2 places in decision I think where Roberts likens EPA decision to those before against CDC + OSHA denying “vax” mandates.
BookmarQed !!!!!