A panel of environmental lawyers with expertise in the Clean Air Act addressed major questions Thursday (July 7) about the Supreme Court’s recent 6-3 decision stripping the Environmental Protection Agency of the ability to impose major limits coal to achieve greenhouse gas emissions across the country. The Washington-based environmental think tank Resources for the Future (RFF) organized the event.
The panel – former Obama administration EPA air litigator and now Georgetown University law professor Lisa Heinzerling; Jeffrey Holmstead of the Bracewell law firm and former EPA air chief in the George W. Bush administration; and Nathan Richardson, University of South Carolina law professor and long-time RFF researcher – took up the task
“Major” was a key word at the lively (at least for environmental lawyers) discussion. That’s because the “major questions” doctrine was the foundation of the majority opinion limiting EPA’s authority, written by Chief Justice John Roberts. According to the American College of Environmental Lawyers, “That doctrine says that where the regulatory action in question poses a ‘major question’, it will be set aside unless Congress has very clearly authorized it.”
Roberts wrote of the Obama administration’s “Clean Power Plan,” which the Trump administration tossed aside, was potentially resurrected by Joe Biden’s election, but which the EPA has said it would completely rewrite, fell afoul of the doctrine. Roberts wrote, “This is a major questions case. EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself. Given these circumstances, there is every reason to ‘hesitate before concluding that Congress’ meant to confer on EPA the authority it claims under Section 111(d) [of the Clean Air Act].”
Just how sweeping was the court’s overturning of a plan that was never implemented?
Heinzerling said that the “most dangerous part” of court’s decision in the case (West Virginia v. EPA) is “the ruling on the major questions doctrine.” She said it is a bad development for people who want a workable and effective government. At the end of the day, it limits congress’s power to legislate” broadly and let the executive branch implement the general policy. “Congress is going to have to follow the court” on the case. “I’m suspicious how limited the opinion is.”
Holmstead said he sees it differently and “not as an attack on Congressional authority. It seems like common sense” to limit an executive branch agency when it does something based on its “creative view” of statutory language. He noted, for example, that it would not be legal for the EPA to get the Securities and Exchange Commission to promulgate climate regulations based on the authority of the Clean Air Act.
Richardson generally agreed with Heinzerling. The real risk is not just to climate policy and the EPA, he said, “but to all of government.” He said that the court’s narrow approach makes it “really difficult for EPA to write regulations that cross sectors.” such as cement making (which uses lots of coal), or building practices.
RFF economist and panel moderator Susan Tierney asked, “What options does EPA have with regard to regulating greenhouse gas emissions?”
Holmstead responded, “When the Clean Power Plan was adopted, it was seen by many as absolutely necessary. But emissions reductions have outpaced the Clean Power Plan. A lot of what happened had nothing to do with EPA regulations,” but from changing technological and economic forces.
–Kennedy Maize
Twitter (@kennedymaize)