Supreme Court Case on Climate Goes Beyond the Environment: GOP

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(Bloomberg). A Monday argument by the U.S. Supreme Court could give conservatives a new tool to reduce the power of federal regulatory agency with ramifications that go far beyond environmental issues.

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 put at risk President Joe Biden’s promise to reduce greenhouse-gas emissions from power plants by half by the end of this decade.

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The case could be a turning point for the movement to control the so-called administrative government. Some legal conservatives believe it is as important as overturning Roe v. Wade’s abortion-rights ruling. They claim that unaccountable regulators are taking over a role that the Constitution entrusts for Congress.

This is really about a fundamental issue of who decides major issues of the day. West Virginia Attorney general Patrick Morrisey is leading the effort against the EPA. Should it be unelected bureaucrats? Or should it be the representatives of the people in Congress?

This could result in weaker environmental regulations and consumer-safety/anti-fraud protections. Presidents will have less flexibility to address future pandemics. Supporters of administrative agencies claim that they are the only way for the government to address the nation’s biggest problems, despite Congress being paralyzed by partisan discord.

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People who aren’t interested in environmental issues aren’t as concerned about them as people who are worried about vaccine mandates or other issues facing the administrative state. James W. Coleman is a Southern Methodist University law professor. These are important questions for all of the administrative states, not just for environmental law. However, the climate questions are big and blockbuster.

Thwarting Biden

The case involves two controversial legal doctrines, which have gained new prominence at court with the arrival in three Donald Trump appointees. They already played a role to thwart Bidens agenda.

The Constitution restricts Congress’ ability to take over legislative responsibilities, according to the non-delegation doctrine. The major-questions doctrine insists on clear authorization by Congress before an agency can exercise broad powers.

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Both doctrines were close to the surface when the court lifted an administration-wide moratorium on evictions in the pandemic. It also blocked plans for regular testing or vaccines for the 84 million workers.

The court referred to the major-questions doctrine in the eviction case last summer, saying that Congress should speak clearly when authorizing an agency with vast economic or political significance.

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 also added three conservative justices to the opinion. He stated that if OSHA was granted the power by the statutory subsection it cites, that law would likely be unconstitutional delegation of legislative authority.

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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 authority covered areas such as patent rights and taxes, refinancing national debt, and raising armies.

Mortenson stated that these delegations often had broad discretion to resolve major policy issues without any guidance.

The case centers around a Clean Air Act clause that requires the EPA to determine the best system of emission reductions for existing pollution sources. The law also requires states to implement plans that are consistent with these findings.

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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 want the court to prohibit anything that is similar to former President Barack Obama’s Clean Power Plan. This plan pushed states to shift electricity generation away from coal-burning plants to lower-emitting options like renewable power. The Clean Power Plan was blocked by the Supreme Court in 2016. It never became effective.

Preemptive Shush

Biden administration officials, power companies and environmental groups argue that the Clean Air Act permits more aggressive emissions-control measures like cap-and-trade systems. They cite Supreme Court precedents, which say Congress can delegate policies provided that an intelligible principle guides them.

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The courts’ agreement to hear the appeals of the state and coal companies suggests a willingness to limit the EPA. They ignored objections that their involvement was premature, given that the Biden administration had not yet issued its own power plant rule. A ruling against EPA could also prevent its new limits on automobile emission, which are intended to encourage electric vehicles.

According to Michael McKenna (a former White House official and energy strategist for the GOP), the Supreme Court appears to be in a hurry to give EPA a preemptive silence. It is likely a negative sign for the agencies.

2022 Bloomberg L.P.

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