by Adam Sobel
July 1, 2022
Introduction:
Read more here: https://thebulletin.org/2022/07/the-su ... t-heading(The Bulletin of Atomic Scientists) “The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy. I cannot think of many things more frightening.” Justice Elena Kagan wrote that, in her dissent from the Supreme Court majority’s ruling in West Virginia v Environmental Protection Agency. I agree—but I can easily think of a few things that are about equally frightening. Namely, the Supreme Court decisions that immediately preceded it, and the ones that are likely to come soon after.
In the EPA ruling, the court’s majority argued that the Clean Air Act didn’t give the EPA the authority to make broad regulations limiting greenhouse gas emissions from power plants. Only Congress has that power, they argued. The court acknowledged that modern life is sufficiently complex that the historical practice, in which Congress makes laws expressing broad intent and federal agencies work out the details required to implement them, is to some extent necessary in our complex modern age but ruled that it isn’t enough in the case of “major questions.” This is apparently a new legal theory, just invented to justify the court’s decision.
If one wants to see an upside, the ruling is not as broad as those of us who want a functioning government had feared. Because it affects only a specific EPA rule, it doesn’t yet invalidate the entire “administrative state” that, in practice, allows the United States to exist as a modern country, and that gives citizens some protection from corporate power.
But the ruling puts everyone on notice. Anything any federal agency does that the new far-right majority on the court doesn’t like can apparently be declared a “major question,” so that no action can be taken by the agency unless Congress explicitly approves the specific rule in question—even when (as in the case of the Clean Air Act) Congress has already instructed the Agency to implement a law with clear intent.