The Supreme Court dealt a major blow to the Biden administration’s climate change agenda, ruling Thursday that the Environmental Protection Agency cannot pass sweeping regulations that can reform entire industries without additional approval from Congress.
Resolution 6.3 limits how far the executive can go in imposing new environmental regulations on its own.
“Cutting carbon dioxide emissions at a level that would compel a nationwide transition away from using coal to generate electricity would be a reasonable solution to today’s crisis,” but it is not unreasonable for Congress to give the EPA the authority to adopt on its own such a regulatory scheme in Section 111(d),” Chief Justice John Roberts said in the Court’s opinion, referring to Section 111 of the Clean Air Act. “A decision of such magnitude and consequence rests with Congress itself, or the agency operating under the express mandate of that representative body.”
The issue arose from the Obama administration’s 2015 Clean Energy Plan that was time to reduce carbon emissions at power plants by pushing the switch from coal to natural gas, and eventually to wind and solar power. The plan was suspended by the Supreme Court in 2016, then the Trump administration scrapped it and replaced it with the Less Extreme Clean Energy (ACE) rule.
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After President Biden took office, the ACE rule became the subject of a lawsuit that led to the Capital Circuit Court of Appeals overturning that rule as well as canceling the Clean Power Plan. However, Biden’s Environmental Protection Agency has stated that it will not return the Clean Energy Plan, opting instead to develop and implement its own.
The question of how much energy the EPA has was based on a provision in Section 111 of the Clean Air Act, which gives the EPA the authority to set “performance standards” for existing sources of air pollutants as long as they take into account cost, energy requirements, and non-atmospheric health and environmental impacts. .
Trump’s Environmental Protection Agency, by repealing the Clean Power Plan, has taken the position that Section 111 allows them only to specify measures to be implemented at the physical power plants themselves (“within the line” limitation) and not broadly applicable measures for entire industries.
Likewise, West Virginia and other states have claimed Section 111 does not allow the EPA to go so far as to set rules that would completely reshape US electrical grids or force industries to eliminate carbon emissions entirely.
West Virginia’s argument rests on the “principal questions principle,” which says that although federal agencies generally have broad rule-making power as delegated by Congress through the laws they create, when it comes to issues of major economic and political importance those laws need clear language to support the agency’s work. When Trump scrapped the plan in 2019, the US Environmental Protection Agency cited the principle of Key Questions.
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Biden’s Environmental Protection Agency claimed that the Key Questions doctrine did not apply in this case, arguing that there was no such issue. During the oral arguments, Solicitor General Elizabeth Prilugar emphasized that there could be no major question because there is no existing rule.
“According to our precedents, this is an issue of key questions,” the Supreme Court said in its majority opinion, noting that the EPA argues that current law “entitles it to substantially restructure the US energy market.”[.]The court noted that the EPA derived this ‘newly discovered power’ from ‘the vague language of an ‘additional clause’ which was ‘seldom used in previous decades’.
The court stated that the EPA’s new interpretation of the law “was not only unprecedented; it also brought about a ‘fundamental revision of the statute’.”[.]””
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Given the nature of this interpretation, the court said it was skeptical that this was what the law really meant.
To overcome this doubt, the court said, the government should – under the principle of key questions – indicate ‘clear congressional authorization’ to regulate in this way, and ultimately determined that the EPA had failed to find such authorization.
Judge Elena Kagan disagreed with Judges Stephen Breyer and Sonia Sotomayor. Kagan described the gravity of climate change and the risks it poses if no major change is made when it comes to carbon emissions.
“Congress has tasked the Environmental Protection Agency with addressing those potentially catastrophic damages, including by regulating fossil-fuel power plants,” Kagan wrote.
Opponents argued that Section 111 actually allows the EPA to make sweeping changes because it allows the EPA to choose the “best emissions reduction regime.”
“I prefer a ‘full stop’ system – no ifs, ands, or but of any kind relevant here,” Kagan said.
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Kagan also echoed the argument she made during oral arguments made by US Attorney General Elizabeth Prilugar, that there was no reason for the court to hear this case given that the Clean Energy Plan no longer exists, and the Biden administration is working on a new one.
“However, this court decided to adjudicate the legality of the old rule anyway,” Kagan said, adding that “since no one is now subject to the terms of the Clean Power Plan, there was no reason to reach out to decide this case.” Kagan said the majority opinion “is really an advisory opinion on the appropriate scope of the new rule being considered by the EPA,” and that the court “cannot wait — until you see what the new rule says — to constrain the EPA’s efforts to tackle climate change.”