The Supreme Court’s EPA Decision Could Hamper Regulators’ Ability to Protect the Public

by Lisa Song

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The Supreme Court decision to limit the Environmental Protection Agency’s ability to regulate greenhouse gases from power plants set off widespread worries that federal agencies won’t be able to protect Americans from harm.

The 6-3 ruling, announced last week, triggered immediate questions at ProPublica, which had spent more than a year reporting on where Americans are exposed to dangerous levels of hazardous air pollutants regulated by the Clean Air Act, the same law at the heart of the Supreme Court case. In a 2021 series, ProPublica showed how industrial polluters have turned neighborhoods into “sacrifice zones” where some 250,000 Americans breathe in carcinogens that expose them to cancer risks the EPA has deemed unacceptable. A lack of air monitoring and enforcement left communities ill informed about the risks they faced, ProPublica found. In the wake of our reporting, the agency stepped up its enforcement and pledged to do more. Did this ruling put those reforms at risk?

To understand the implications of this historic court decision on both the EPA and other federal regulators that hold corporations accountable, ProPublica spoke to two environmental law experts: Patricia Ross McCubbin, a Clean Air Act expert and law professor at Southern Illinois University, and Victor Flatt, a University of Houston law professor and faculty co-director of the Environment, Energy & Natural Resources Center.

At issue in the case, West Virginia v. Environmental Protection Agency, is a 2015 rule issued under President Barack Obama’s administration that was aimed at slashing greenhouse gas emissions from coal power plants, in part by shifting electricity production to cleaner energy types. Lawyers in the case made their arguments before the Supreme Court on Feb. 28, the same day the United Nations released a crucial report warning that climate change kills people and that the world will need to drastically slash emissions in order to avoid the most catastrophic consequences of a warming planet.

Both experts said the Supreme Court decision hinges on a basic question: Did Congress give the EPA, as part of the agency’s mission to reduce pollution, the authority to reduce power plant emissions in the manner the agency proposed in that 2015 rule? The majority on the court said Congress hadn’t granted the agency that power. The ruling relied on what’s called the “major questions doctrine,” which requires that Congress explicitly define what power an agency has to regulate matters that have national significance. This decision, the experts said, could force agencies to tread carefully. However, Flatt and McCubbin said it likely won’t impact the EPA’s regulation of the type of pollutants ProPublica spotlighted in the “Sacrifice Zones” series because Congress has spelled out, in detail, how the EPA should oversee those industrial chemicals.

In her dissent, Justice Elena Kagan wrote that Congress provides overall policy outlines but relies on federal agencies with expertise to figure out the best ways to accomplish those goals. The court itself has no such expertise, she wrote: “Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. … The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.”

Justices Stephen Breyer and Sonia Sotomayor joined Kagan’s dissent.

Flatt and McCubbin said the ruling tilts power away from the executive branch and toward Congress, turning on its ear the traditional authority that agencies have to act when Congress’ direction is ambiguous. Our conversation has been edited for clarity:

Can you summarize what the decision means?

Flatt: So, what the ruling said was that EPA can regulate greenhouse gases. But it cannot do certain things unless Congress has explicitly given them the authority to use those tools. ...

That’s a change from the past, where the courts have said, “Well, if Congress isn’t completely clear, we will defer to the agency as long as Congress hasn’t said they cannot do certain things.”

McCubbin: In one sense, this ruling is somewhat narrow. The only thing that the court technically did was declare that EPA could not, under Section 111(d) of the Clean Air Act, require existing power plants to limit greenhouse gas emissions by shifting electricity generation to cleaner energy sources. The court did not say that EPA couldn’t regulate greenhouse gases in some other fashion, even under 111(d). The court did not say EPA couldn’t use other provisions to try to address greenhouse gases.

The basis for the ruling though — this concept called the major questions doctrine — that is a huge potential barrier. Basically, every federal agency is now focused on this phrase.

What is the major questions doctrine?

McCubbin: The major questions doctrine says, in simple terms, that if a federal agency is going to address the really big thorny questions of our day, that agency has to be able to point to some clear authority from Congress, in a statute, to address that big thorny question. Here in this case, the court thought deciding what energy mix we’re going to have in our society is a pretty important question that Congress should weigh in on [and] not leave it to this agency.

And I think there is some truth to that. I think the pendulum maybe has swung to where we have agencies addressing profound issues for our society with very little guidance from Congress. The court’s theory is that Congress is functional enough to actually address these big important issues, and maybe 10 years ago when the House passed Waxman-Markey [a climate change bill from 2009], we were close to being functional. But in this day and age, that theory doesn’t match up with practicality.

I would argue that the concepts of the major questions doctrine have been in other Supreme Court decisions, but this is the first time that the majority has actually used that phrase.

The problem is … the justices in this opinion don’t all agree on what is a really big thorny question. No one knows precisely. For example, Chief Justice John Roberts has one sort of test. Justice Neil Gorsuch in his concurrence has a different sort of test.

How will this ruling affect future climate regulation?

Flatt: Overall, it means that it is going to be more difficult, if not impossible, for the EPA to use certain kinds of regulatory tools. In particular, Justice Roberts, in the majority opinion, called out the potential use of emissions trading that was in the Clean Power Plan, saying that all this fuel switching and requiring different fuels is a very big thing to do. And Congress did not give you authorization to do that. What you need to do with greenhouse gases is essentially regulate them like you’ve regulated other pollutants — using control technology at the source of the pollution itself.

McCubbin: The one good thing about this opinion, actually, is that it did not second-guess an earlier decision where the court said EPA can address greenhouse gases under the Clean Air Act. There were people who were worried that this case would actually go that far. And the court didn't.

So the court wants the EPA to use more traditional forms of pollution control, like installing equipment to reduce emissions at the smokestack. But the EPA said it’s impossible to get significant greenhouse gas reductions through that method.

McCubbin: That’s exactly right. I would suspect that at least some people are wondering, under this opinion now, could EPA require carbon capture and sequestration at a coal facility? That’s a very expensive technology. Would that be a traditional enough method? Or would it still be too big? Would it be too controversial? Would it be too expensive? We don’t know.

What does this mean for the EPA’s ability to regulate the types of hazardous air pollutants discussed in our “Sacrifice Zones” series? The EPA regulates these pollutants under the Clean Air Act, which Congress amended in 1990.

McCubbin: Many of these statutes are quite old and quite generic. But the hazardous air pollutant provision [a section of the Clean Air Act] is an example of, I think, what the court thinks Congress should do. In 1990, Congress … really did its job and specified a lot of details for how to address toxic pollutants. It listed 189 pollutants that had to be regulated. It told the EPA how many facilities to look at in each particular category of industry to determine the maximum emission control.

The agency has pledged to better regulate hazardous air pollutants in response to our reporting last year. Could this ruling affect those promises, or the EPA’s ability to step up enforcement?

Flatt: Enforcement is always something that the agency is given a great deal of flexibility on. … The ability to enforce is always a core agency power. So if you’re just saying you’re going to enforce better, that’s fine.

The ruling cited an earlier case related to the major questions doctrine, where the Supreme Court said the Occupational Safety and Health Administration couldn’t require COVID-19 vaccines or testing in workplaces. It said Congress would need to give OSHA the power to do that. Many of the statutes that govern federal agencies were written decades ago, before issues like climate change became as relevant or urgent as they are today. Is it realistic to wait for Congress to give more instruction, especially when Congress is deadlocked?

Flatt: Even if Congress were functional, it slows down the ability to deal with issues and novel problems. Congress can’t do things in an emergency way. They literally might not be in session. So that really does show that even with a functional Congress, you’re really kneecapping the ability of the government to do things.

McCubbin: That is the problem here. The court is asking for a clear statement from Congress. And it is very doubtful in this day and age that we’re going to get that on big major issues. So one potential implication is that we are not going to have very much federal action, and it’s going to default to the states on everything from climate change to abortion rules.

Could this decision have a chilling effect on proposed rules from the EPA and other federal agencies?

Flatt: Not in this administration. Yes, agencies don’t like to be overturned. But they’re going to try to do what they want to do. Now, on the other hand, I don’t expect any lessening of any challenges from state attorneys general, whatever the EPA does. That’s just the blood sport. That’s always going to happen. It’s political.

McCubbin: Yes, I definitely think so. It will have that — if not chilling, at least slowing down effect — because they’ll have to be double careful.

They’re going to have to at least think hard: Are we stepping into an area where we might be seen as addressing a major question? And without a bit of guidance, there may be a slight chilling effect or pulling back. Or they may say, “Let’s aggressively go forward and test the limits.” But it will change agencies’ behavior because of this signal from the court.

This content originally appeared on Articles and Investigations - ProPublica and was authored by by Lisa Song.