CEI Experts React to Supreme Court’s West Virginia v EPA Decision

WASHINGTON—In deciding West Virginia v. EPA today, the Supreme Court held that Congress never authorized the Environmental Protection Agency to regulate carbon emissions from power plants. In a 6-3 decision written by Chief Justice John Roberts, the Court said the EPA’s view of its authority “was not only unprecedented; it also effected a ‘fundamental revision of the statute, changing it from [one sort of] scheme of…regulation’ into an entirely different kind.” On December 17, 2021 CEI filed an amicus curiae brief in support of the states challenging EPA’s authority.

CEI General Counsel Sam Kazman said:

“It was incredibly risky for the federal government to try to turn our power-generating system inside out. Today the Supreme Court ruled that if government is going to do so, then it must be clearly authorized by congressional laws rather than by the dictates of unelected bureaucrats.”

Director of CEI’s Center for Energy and Environment Myron Ebell said:

“The Supreme Court in its West Virginia v EPA decision has substantially walked back its foolish 2007 decision in Massachusetts v EPA, which held that the EPA could use the Clean Air Act to regulate greenhouse gas emissions. The Court has now invoked the major questions doctrine and recognized that Congress designed the Clean Air Act to regulate air pollutants and not carbon dioxide emissions from burning coal, natural gas, and oil. The Court’s sensible decision today that Congress must explicitly authorize regulations with significant economic effects is a setback for the Biden administration’s climate agenda, which amounts to an energy poverty agenda. The Biden administration must now get explicit authorization from Congress if it wants to continue to enact major climate policies that will further raise energy prices.”

CEI Deputy General Counsel Dan Greenberg said:

“The decision today underscores that Congress, not unelected bureaucrats, must be the federal government’s policymaking branch.”

CEI Senior Fellow Marlo Lewis said:

“As outlined by the late Justice Antonin Scalia in Utility Air Regulatory Group v. EPA (2014), the clear statement doctrine holds that courts expect Congress to ‘speak clearly’ if it wishes to assign to an agency ‘decisions of vast economic and political significance.’ Consequently, courts should be skeptical—not deferential—when an agency ‘claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy.’

“Discovering an unheralded power in a long extant statute is exactly what the Obama EPA did when it proposed and promulgated the Clean Power Plan (CPP). The EPA inflated Section 111(d) of the Clean Air Act, a seldom-used ancillary provision, into a mandate to phase out fossil-fuel electric generation—a policy Congress has never approved. The CPP’s legal theory, moreover, implies that the EPA may reallocate production in any economic sector to reduce GHG emissions—a power that would make EPA the nation’s de-facto industrial policy czar.

“The Court’s decision clearly imperils the Biden administration’s ‘whole of government approach’ to the ‘climate crisis.’ The Securities and Exchange Commission, the Federal Reserve, the Federal Energy Regulatory Commission, and the Commodity Futures Trading Commission all now aspire to regulate markets and capital investment for climate policy purposes. Yet Congress never spoke directly to climate change in any of those agencies’ enabling statutes.

“Indeed, the terms ‘climate,’ ‘global,’ ‘warming,’ ‘greenhouse,’ ‘carbon,’ ‘environment,’ ‘pollutant,’ and their cognates do not occur in the Securities and Exchange Act, Federal Reserve Act, Natural Gas Act, and Commodity Futures Act.

“With the administration’s climate agenda stalled on Capitol Hill, the political pressure on agencies to grab power beyond their statutory authority is immense. The Court’s decision could not have come at a more propitious moment.”

CEI Senior Fellow Joel Zinberg said:

“The Supreme Court’s decision today in West Virginia v. EPA, is an important brake on the administrative state that has inexorably grown since the New Deal. It held that in issuing new emission caps designed to remake the U.S. power generation industry in an Obama era Clean Power Plan, the agency had exceeded the authority granted to it by Congress in the Clean Air Act. The Court concluded that this was just the latest in ‘a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.’

“The Court held that this is a ‘major case’ in which the agency, claimed a little used statutory section that had always been more conservatively interpreted, ‘empowers it to substantially restructure the American energy market.’ Significantly, in invalidating the agency action, the Court cited two recent cases where it reversed obvious cases of administrative overreach during the pandemic.

“In Alabama Association of Realtors v. Department of Health and Human Services, 141 S. Ct.  2485 (2021), the CDC claimed it had authority under the Public Health Service Act (42 U.S.C. 264(a)) to impose a nationwide moratorium on evictions of tenants. The Court articulating and applied the ‘major questions’ doctrine: ‘We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.’ A nationwide eviction moratorium certainly qualified as having vast economic and political significance, but nothing in the statute remotely addressed that sort of action. The Court therefore held that, ‘if a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.’

“Similarly, the Court applied the major questions doctrine to invalidate the Occupational Safety and Health Administration’s vaccine mandate for private workers.  In National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration 142 S. Ct. 661 (2022) (quoting Alabama Association of Realtors), the Court (6-3) decided that OSHA had exceeded its authority under the Occupational Safety and Health Act (29 USC 651 et seq) by issuing an Emergency Temporary Standard requiring vaccination or testing in workplaces employing at least 100 people. The OSHA mandate impacting tens of millions of private workers and was clearly a major question of vast economic and political significance. But the OSHA Act did not plainly authorize it.

“Today’s decision reaffirms that this Supreme Court takes the language and structure of the Constitution seriously and will no longer automatically defer to federal agency statutory interpretations or exertions of broad authority. Whether it is during a public health or a climate ‘emergency,’ the Constitution places the ultimate policy making authority in the Congress.”

CEI Research Fellow Sean Higgins said:

“In an ironic, unintentional way President Obama has been a great ally of the effort to rein in the regulatory state. Few presidents overreached in as klutzy a way as he did with executive power, creating so many opportunities for courts to clarify where the constitutional limitations should properly be. Chalk this up to him being too inexperienced for the job. Though he had been a senator Obama spent the almost the entirety of his lone term on Capitol Hill running for president. He never learned how to cut deals and logroll to get what he wanted in the way of old-timers like Ted Kennedy. Once in the White House Obama started to believe his own hype that he was the messiah-figure that would solve everything with his blinding charisma. His idea of compromise was, ‘You cave in and enact my agenda and I’ll say some nice things about you.’ When Republicans unsurprisingly balked at this, Obama’s response was not to, as Bill Clinton before him did, roll up his sleeves, sit down at a table and work out a deal with the other side. He instead spurned the Republicans as ‘obstructionists,’ and told the executive agencies and cabinet departments to circumvent Congress. Obama was not skilled enough as an executive, however, to do this in a limited fashion that would expand the agencies’ reach in a sustainable way. Instead, he pushed the agency heads to act boldly, not realizing that the courts were a co-equal branch that could rein that overreach and anything that did survive the courts could simply be undone by the next Republican administration.”

CEI Vice President for Strategy Iain Murray said:

“The biggest losers today are power-hungry deep state bureaucrats. No matter how expert they may be on their subject (and it is an open question how expert environmental lawyers are on the subject of electricity generation) they cannot under our Constitutional system of government substitute their judgment for the decision of the people’s representatives in Congress. The administration’s ambitious ‘whole of government’ agendas trying to insert things like climate considerations into unrelated areas like securities law took an almighty hit.”