(Bloomberg). — Monday’s argument at the U.S. Supreme Court could provide conservatives with a new way to reduce federal regulatory agencies’ power, with ramifications far beyond environmental concerns.
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Republican-led states and coal-mining companies are pushing for strict limits on the Environmental Protection Agency’s authority to reduce greenhouse gas emissions from power plants. This would threaten President Joe Bidens commitment to reduce greenhouse gas emissions from power plants by halving them by the end the decade.
The case could also be a turning point in the movement to curb the so-called administrative status. This project is seen as as crucial by legal conservatives as the overturning of Roe v. Wade’s abortion rights ruling. They claim that unaccountable regulators are taking over a role the Constitution has entrusted to Congress.
This really boils down to who decides the major issues of today, according to Patrick Morrisey, West Virginia Attorney General, who is leading efforts to curb the EPA. Should it be unelected bureaucrats or the people’s representatives in Congress?
This could lead to weaker environmental regulations, lower consumer-safety protections, and less flexibility for presidents in addressing future pandemics or other crises. The support for administrative agencies is that they are the only tool available to the government to address the nation’s most pressing problems.
James W. Coleman is a Southern Methodist University law professor. He said that people who aren’t interested in environmental issues — or people who are concerned with vaccine mandates or other issues affecting the administrative state — can be laser-focused on this case. These are important questions for all of the administrative states, not just for environmental law. However, the climate questions themselves are large and complex.
Thwarting Biden
Two controversial legal doctrines are at the center of the case. They have been given new prominence by the arrival three Donald Trump appointees. They have already played a part in thwarting Biden’s agenda.
The Constitution’s non-delegation doctrine states that Congress is limited in its ability to delegate legislative responsibilities. The major-questions doctrine, however, insists that Congress must give clear authorization before an agency can exercise broad power.
Both doctrines were present when the court lifted a moratorium by the Biden administrations on evictions during pandemics and stopped plans to require regular vaccines for 84 million workers.
In the eviction case, the court mentioned the major-questions theory. It stated that Congress must be clear when authorizing agencies to exercise vast economic and political power.
This language was used again by the court in January when it stated that Congress did not authorize the Occupational safety and Health Administrations shot or test rule.
Justice Neil Gorsuch, a conservative justice, added that if OSHA really was endowed with the power it claims, then that law would likely constitute an unconstitutional delegation of legislative authority.
First Congress
Critics claim both doctrines are judicial inventions that are not found in the Constitution and cannot be reconciled with the country’s history. Julian Davis Mortenson, University of Michigan Law Professor, argued in a brief that the First Congress granted broad policy making authority in 1789-1790. This included areas such as patent rights and taxes, refinancing national debt, and raising armies.
Mortenson said that these delegations were granted broad discretion to resolve policy issues with little or no guidance.
The case revolves around a Clean Air Act provision that requires the EPA identify the best system for reducing emissions from existing polluting sources. The law requires states to implement plans based on these findings.
Republican-led states and coal companies say that the EPAs authority ends at the fence-line for power plants. This approach could limit the agency’s ability to reduce emissions at the sites.
They are asking the court for a preemptive ban on anything that resembles former President Barack Obama’s Clean Power Plan. It pushed states toward switching electricity generation from coal-burning power plants to renewable power. In 2016, the Supreme Court blocked Clean Power Plan, and it never went into effect.
Preemptive Shush
Biden administration, power companies, and environmental groups claim that the Clean Air Act allows for more emissions-control measures such as cap-and trade systems. They cite Supreme Court precedents which state that Congress can delegate policy making as long as an intelligible principle guides it.
The court agreement to hear the appeals of the state and coal-company indicates a willingness to limit the EPA. Their involvement was not considered premature by the justices, who ignored objections that they were involved because the Biden administration hadn’t yet issued its power-plant rule. A ruling against EPA could also stop its new limits for automobile emissions, which aim at encouraging electric vehicles.
In a note to clients, Michael McKenna, a GOP energy strategist, and former White House official, stated that the Supreme Court seems to be in a position to give EPA a preventive shush. This is probably a bad sign.
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