The Supreme Court's Demolition Agenda

Thomas McGarity

June 17, 2022

The U.S. Supreme Court's upcoming ruling on the U.S. Environmental Protection Agency's power to regulate greenhouse gases from coal-fired power plants offers an unwelcome opportunity for its conservative majority to advance the former Trump administration's goal of "deconstructing the administrative state."

The vehicle for advancing the Trump agenda is the obscure "major questions" doctrine, under which the Court insists that congressional delegations of power to regulatory agencies must be made with pinpoint precision on questions of "vast economic and political significance."

The Court invented the major questions doctrine about 20 years ago in a case involving the U.S. Food and Drug Administration's authority to regulate cigarettes, but it had used it only very rarely to overturn agency actions until Democratic presidents began to write regulations that aggressively protected public health, worker safety, and the environment.

The doctrine is at the heart of the challenge by the coal industry and several Republican attorneys general to the Obama administration's interpretation of the Clean Air Act to empower EPA to write guidelines requiring electric power companies to reduce greenhouse gas emissions by shifting generation capacity from high-emitting coal-fired power plants to low-emitting natural gas-fired plants and to zero-emitting renewable resources such as wind turbines and solar arrays.

The Supreme Court should be issuing a decision by the end of this month.

In replacing the Obama EPA's Clean Power Plan with its milquetoast Affordable Clean Energy plan, the Trump EPA claimed that the major questions doctrine precluded it from basing its guidelines on generation-shifting.

The problem with that argument is that the Obama EPA's plan did not have "vast economic or political consequences" because the electric power industry had met its goal long before the Trump EPA repealed it.

Therefore, Justice Alito shifted the focus of his major questions inquiry during the recent oral arguments to the hypothetical economic impact of the agency's interpretation of a statute were it to press that interpretation to its most extreme limits.

Alito's inquiry shows how judges can use the malleability of the major questions doctrine to enhance their power to reduce the ability of federal agencies to protect the public from polluters, profiteers, and plunderers. Limiting the power of regulatory agencies is the essence of the demolition agenda that regulated industries pursued with special vigor during the Trump administration.

Congress has often written broad delegations of power to agencies to enable them to protect citizens from corporate malfeasance. The Court's insistence that Congress focus with laser-like precision on every conceivable issue that may come up in the distant future will make it far more difficult for Congress to enact protective legislation in the future.

The fact that the Court has recently relied on the major questions doctrine to throw out the Biden administration's attempt to protect apartment dwellers from evictions during the pandemic and to protect workers from exposure to COVID-19 suggests that the addition of three Trump appointees has made the Court far more willing to conclude that recent interpretations of older statutes present major questions than it has been in the past. It thus appears that the major questions doctrine is operating as a judicially imposed sunset rule for regulatory statutes.

The Court's invocation of the doctrine in the context of power plant regulation will be devastating for the Biden administration's attempts to address climate change. Regulating greenhouse emissions from coal-fired power plants is the best opportunity it has to bring down climate pollution under existing laws. And there is little chance that Congress will write legislation specifically empowering EPA to provide that protection so long as its Republican members remain unified in their opposition to federal attempts to limit climate disruption.

The Biden administration is also writing regulations to reduce greenhouse gas emissions from automobiles, heavy-duty trucks, and gas-fired power plants, but it is relying on the same 1970 statute for its authority. Those regulations will likely be subject to the same major questions restrictions on EPA's power to act.

If the six conservative justices use the judge-made major questions doctrine to prevent the Biden administration from regulating greenhouse gases under the Clean Air Act, they will accomplish what Republican presidents and Republican-controlled Congresses have thus far failed to achieve — a victory for the fossil fuel industry over the proponents of sensible environmental safeguards.

Editor's note: You can read more about these and related issues in Tom's new book, Demolition Agenda, available from most booksellers. For a conversation about the book and the issues it covers, check out Tom's May 19 book launch event with Center for Progressive Reform Senior Policy Analyst James Goodwin.

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