Adam Liptak, NYTimes

WASHINGTON
EnergiesNet.com 07 01 2022

 The Supreme Court on Thursday limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, making it much tougher for President Biden to achieve his goal of cutting greenhouse gas emissions in half by the end of the decade.

The vote was 6 to 3, with the court’s three liberal justices in dissent, saying that the majority had stripped the E.P.A. of “the power to respond to the most pressing environmental challenge of our time.”

In ruling against the E.P.A., the Supreme Court again waded into a politically divisive issue on the final day of a blockbuster term, adding to the conservative supermajority’s decisions to eliminate the constitutional right to abortion, vastly expand gun rights and further erode the wall separating church and state.

The implications of the ruling could extend well beyond environmental policy. It also signals that the court’s newly expanded conservative majority is deeply skeptical of the power of administrative agencies to address major issues facing the nation and the planet.

The decision set off criticism from the left, but voices from the coal industry and conservative states praised the ruling.

Mr. Biden, left with far fewer tools to fight climate change, said the ruling was “another devastating decision that aims to take our country backwards.” He vowed to take action even as the court limited his ability to act, adding: “We cannot and will not ignore the danger to public health and existential threat the climate crisis poses.”

Patrick Morrisey, the attorney general of West Virginia and one of the leaders of the challenge to the E.P.A.’s authority, welcomed the decision.

“E.P.A. can no longer sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation,” he said.

Writing for the majority, Chief Justice John G. Roberts Jr. only glancingly alluded to the harms caused by climate change. Justice Elena Kagan began her dissent with a long passage detailing the devastation the planet faces, including hurricanes, floods, famines, coastal erosion, mass migration and political crises.

The question in the case, Chief Justice Roberts wrote, turned on the scope of the language of the Clean Air Act. Under it, he wrote, Congress had not clearly given the agency sweeping authority to regulate the energy industry.

“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,’” he wrote, quoting an earlier decision. But, he added, “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

In dissent, Justice Kagan wrote that the court had substituted its own policy judgment for that of Congress.

“Whatever else this court may know about, it does not have a clue about how to address climate change,” she wrote. “And let’s say the obvious: The stakes here are high. Yet the court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions.”

“The court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy,” she wrote. “I cannot think of many things more frightening.”

The ruling curtailed but did not eliminate the agency’s ability to regulate the energy sector, and the agency may still use measures like emission controls at individual power plants. But the court ruled out more ambitious approaches, like a cap-and-trade system.

It has also expressed skepticism toward the reach of other regulatory agencies, evident in recent decisions arising from the coronavirus pandemic. The court has ruled, for instance, that the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration was powerless to tell large employers to have their workers vaccinated or undergo frequent testing.

The question before the justices in the new case, West Virginia v. Environmental Protection Agency, No. 20-1530, was whether the Clean Air Act allowed the E.P.A. to issue sweeping regulations across the power sector. More broadly, the court was asked to address whether Congress must “speak with particular clarity when it authorizes executive agencies to address major political and economic questions.”

That theory is often referred to as the “major questions doctrine,” and it played a key role in Thursday’s decision. Chief Justice Roberts, employing the phrase for the first time in a majority opinion, said it applied in cases of unusual significance and was meant to address “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

The provision of the Clean Air Act the Biden administration pointed to was too oblique, and so ran afoul of the major questions doctrine, the chief justice wrote.

Chief Justice Roberts’s opinion advanced a central goal of the conservative legal movement, that of curtailing the power of the administrative state. But it did so in a characteristically measured way.

In a full-throated 19-page concurring opinion, Justice Neil M. Gorsuch, joined by Justice Samuel A. Alito Jr., elaborated on what the chief justice had written.

“When Congress seems slow to solve problems, it may be only natural that those in the executive branch might seek to take matters into their own hands,” Justice Gorsuch wrote. “But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

In dissent, Justice Kagan wrote that the statute at issue in the case had given the agency ample authority. “The Clean Air Act was major legislation, designed to deal with a major public policy issue,” she wrote, adding: “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise.”

She added that the agency was best suited to take on climate change.

“This is not the attorney general regulating medical care, or even the C.D.C. regulating landlord-tenant relations,” she wrote. “It is E.P.A. (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.”

Understand the Supreme Court’s E.P.A. Ruling

A key decision. The Supreme Court issued a ruling limiting the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, dealing a blow to the Biden administration’s efforts to address climate change. Here’s what to know:

The case. The justices had been called to rule on whether the 1970 Clean Air Act allows the E.P.A. to issue sweeping regulations across the power sector or limits the agency to dictating changes at individual power plants.

A suspended rule. At issue in the case is the Clean Power Plan, an Obama-era federal regulation adopted under the Clean Air Act that sought to govern emissions from power plants. After its announcement led to a barrage of lawsuits from Republican states and the coal industry, the Supreme Court put the program on hold in 2016 and it never took effect.

The stakes. The plaintiffs, which include several Republican attorneys general and coal companies, want to rein in the E.P.A. and other federal agencies that issue regulations that affect the American economy, arguing that it should be up to Congress to set the rules.

The ruling. The ruling curtails the E.P.A.’s ability to regulate the energy sector, limiting it to measures like emission controls at individual power plants and ruling out more ambitious approaches like a cap-and-trade system without the intervention of Congress.

Further implications. The decision could also pave the way for restrictions on federal agencies’ abilities to regulate health care, workplace safety, telecommunications and the financial sector.

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The Supreme Court’s conservative majority is generally committed to textualism, a judicial approach that focuses on the words of the law as written rather than its larger purpose or the intentions of its drafters. In a 2015 appearance at Harvard Law School, Justice Kagan said that textualism had triumphed across the ideological spectrum. “We’re all textualists now,” she said then.

But on Thursday, she wrote that “it seems I was wrong.”

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

The case had an unusual history.

Last year, on the last full day of Donald J. Trump’s presidency, a federal appeals court in Washington struck down his administration’s plan to relax restrictions on greenhouse gas emissions from power plants. The Trump administration said the Clean Air Act unambiguously limited the measures the agency could use to those “that can be put into operation at a building, structure, facility or installation.”

A divided three-judge panel of the court, the U.S. Court of Appeals for the District of Columbia Circuit, ruled that the Trump administration’s plan, called the Affordable Clean Energy Rule, was based on a “fundamental misconstruction” of the relevant law, prompted by a “tortured series of misreadings.”

“The E.P.A. has ample discretion in carrying out its mandate,” the decision concluded. “But it may not shirk its responsibility by imagining new limitations that the plain language of the statute does not clearly require.”

The panel did not reinstate a 2015 Obama-era regulation, the Clean Power Plan, which would have forced utilities to move away from coal and toward renewable energy to reduce emissions. But it rejected the Trump administration’s attempt to replace that rule with what critics said was a toothless one.

The appeals court’s ruling also cleared the way for the Biden administration to issue stronger restrictions.

The Obama-era plan had aimed to cut emissions from the power sector by 32 percent by 2030 compared with 2005 levels. To do so, it instructed every state to draft plans to eliminate carbon emissions from power plants by phasing out coal and increasing the generation of renewable energy.

The Clean Power Plan never came into effect. The Supreme Court blocked it in 2016, effectively ruling that states did not have to comply with the measure until a barrage of lawsuits from conservative states and the coal industry had been resolved.

In her dissent on Thursday, Justice Kagan said that move was the beginning of a series of grave mistakes.

“This court has obstructed E.P.A.’s effort from the beginning,” she wrote. “Right after the Obama administration issued the Clean Power Plan, the court stayed its implementation. That action was unprecedented: Never before had the court stayed a regulation then under review in the lower courts.”

The court’s action in 2016, followed by changes in the court’s membership that moved it to the right, have made environmental groups wary of what the court might do in cases on climate change.

They were surprised and frightened when the court granted review in the case, as there was no regulation in place for the court to review.

Justice Kagan wrote that the court’s eagerness was telling. “This court could not wait — even to see what the new rule says — to constrain E.P.A.’s efforts to address climate change,” she wrote.

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak 

A version of this article appears in print on July 1, 2022, Section A, Page 1 of the New York edition with the headline: Justices Curb E.P.A. Power Over Emissions. Order Reprints | Today’s Paper | Subscribe