A Momentous Question

Pundits are up in arms; talking heads are spouting feverishly; activists have taken up their #s. The Supreme Court has simply lost its mind, gone blatantly partisan (or even worse, Catholic!), and has to be reined in. “Our Democracy” (sic) is fundamentally at risk.

Dobbs overturning Roe and Casey? While that seems to be the judicial crisis du jour, if you read this blog (and you do, because you are), you heard the reasoning in Dobbs explained last November! The momentous decision out of the Supreme Court (SCOTUS) I want you to be aware of is West Virginia vs EPA (the US Environmental Protection Agency). It might have gotten lost in all the toing-and-froing over abortion rights, praying coaches, and state funds for religious schools. It’s the decision environmental activists characterize as ensuring climate change will end all human life as we know it. But the decision is far more important than that (sarcasm intended)!

The case was unusual for several reasons. First, it adjudicated a rule that never went into effect. Usually, when the facts of a case change during the judicial process (for example, there is a settlement, or a prosecutor drops a prosecution or the government changes a contested policy), higher courts call the case moot and end it without judgment on the merits of the case. The Supreme Court is especially fond of this outcome, believing a case must be “ripe,” that is, fully formed before it merits a SCOTUS decision. Second, it enforced the “major questions” doctrine. This concept restrains the powers the legislative branch (i.e., the US Congress) can delegate to the executive branch (i.e., the President and the administrative departments). Both have major implications for how the US governs itself. So you need to understand it.

First, the facts of the case. The Clean Air Act of 1970 granted the EPA the right to control power plant emissions. The concept was simple: power plants emit pollution, America had polluted skies, the Congress and President passed a law to reduce pollution by controlling the pollution from several sources, especially power plants. It worked, amazingly well. The Clean Air Act is the main reason the skies over US cities do not look like that over Guadalajara most days (brown and scuzzy, for the record).

The EPA’s regulatory authority changed little over the next forty years. It measured how much each power plant emitted, determined what a safe level of pollution was, and fined plants producing too much pollution. Under the Obama administration, the EPA desired to take on the challenge of climate change, so it issued a new set of guidelines called the Clean Power Plan. This plan went a step further: rather than measuring and fining individual plants (which prevented polluted skies but did nothing to combat climate change), the EPA now proposed rules which would gradually phase out coal and natural gas as sources for electicity generation (those sources generate almost 60% of US electicity, so this was a huge change) by reducing the allowed pollution emissions.

Several states sued the EPA saying this rule went beyond the EPA’s authority under the Clean Air Act. The Supreme Court stayed the implementation of the new EPA rule pending rulings on the merits of the case in lower courts. So it was still an issue in question: one side wanted the rules enforced, the other side wanted them overturned. Then the Trump administration came into office. Now the EPA ruled it had violated its authorities, and withdrew the Clean Power Plan. Other states now sued the EPA to keep the standards, and to force the EPA to implement it. Lower courts agreed. And thus the case ended up finally on the SCOTUS docket in 2022.

If you read the hysterical press, the headlines went something to the effect that ‘the Supreme Court sides with climate change catastrophe.’ Let’s take that up at the end. What did SCOTUS actually say? First, they held that this was an important issue, and since the plaintiffs and respondents had reversed during the course of the case, there was every likelihood the suits would continue until SCOTUS issued a ruling. In effect, they held they couldn’t rule it moot, as that just restarted the case.

Next, SCOTUS codified something called the major questions doctrine. Why? Over the course of decades, the federal government has issued more and more regulations: it’s what government does. Anybody who has seen the original federal tax form (it was one-page long, both sides) knows how this goes. Congress does not like to be too specific when issuing laws, so they often include language authorizing the executive departments to issue guidelines on how to implement the general goals of the law. Like the Clean Air Act, which had a goal of less pollution but let the EPA determine how much pollution for each plant. Some called this leaving it to the experts, and it is that, to some extent. This was the crux of the issue. The law said the EPA could set limits by individual plant, but could they set nation-wide emission limits effectively eliminating coal and natural gas plants? The court ruled that setting individual limits was within the EPA’s authority, but setting nation-wide limits, especially ones which eliminated certain types of plants, was actually a “major decison” that only the Congress and the President could and should make.

Here’s a clear example of why that’s true. The National Highway Traffic Safety Administration (NHTSA) is a federal agency under the Department of Transportation that regulates traffic on interstate highways, among other things. This is their charter. Large amounts of data confirm that highway deaths vary directly with speed, that is, the faster you drive, the more likely you are to have an accident and cause a fatality. NHTSA was called upon during the days of the “federal 55 mph speed limit” to justify it, and did so on this basis (it was also to save gasoline). Additionally, traffic emissions are a major source of carbon dioxide and other causes of global warming. What if NHTSA’s experts said tomorrow, “highway traffic deaths are an unnecessary tragedy, and climate change is an immediate threat. Starting today, the national speed limit on interstate highways is 40 mph, and it will decrease 5 mph every year until it hits zero.” Zero mph equals zero interstate traffic fatalities and zero emissions. Right?

Yes, and crazy! But the question is not is this crazy, but is this legal? If the EPA could stretch its authority to effectively outlaw coal and natural gas as sources of electricity, why couldn’t NHTSA do the same? Why couldn’t Health & Human Services outlaw sugary drinks? At least the Temprance Union had the guts to take Prohibition to the Constitution via an amendment!

What does the SCOTUS decision mean to you & me? It really does make our response to climate change harder, because it pushes it from the administrative state back up to the Congress and President, which have proven ineffective thus far. But going around the separation of powers in our federal structure is never a good idea. More importantly, the SCOTUS decision puts the administrative state on notice: do what the law prescribes. While there is some leeway, don’t automatically take things to the limit, regardless of how good you think your intentions are. I doubt anybody thinks the administrative state has demonstrated too little power in the last fifty years. If you do, imagine a President you dearly oppose in charge of that same apparatus . . . it will give you pause.

In the long run, the major questions doctrine could have far more effect on how the US governs itself than Dobbs (which kicked abortion down to the States), Kennedy or Carson (the latter two continued a string of rulings stating the government cannot establish a religion, has to be neutral bewteen religions, but cannot be antagonistic to the concept of religious activity). West Virginia vs EPA will be cited in many upcoming government cases, and the theme of the decisions will be “if the government wants to do that, it better have a law which specifically authorizes that.” However you feel about that, now you know why!