This post was originally published on Legal Planet. Reprinted with permission.
Ever since the Supreme Court decided West Virginia v. EPA, conservatives and industry interests have claimed that just about every new regulation violates the major question doctrine. When the Biden administration ramped up fuel efficiency requirements through 2026, ideologues such as the Heritage Foundation and states like Texas were quick to wheel out this attack. No doubt the same attack will be made on the administration's ambitious proposed post-2026 standard. Maybe Judge Kacsmaryk in Amarillo, crusader against abortion pills and all things liberal, would buy that argument. But opponents won’t be able to handpick their judge this time, and the chances that this argument will win in the D.C. Circuit are slim to none.
Heritage's argument against the 2022 rule reads the West Virginia case very broadly: “Under West Virginia v. EPA, the Supreme Court said for agencies to change policy so drastically, as Obama wanted to do to force power plants to change to renewable fuels, they must have clear direction from Congress.” But, Heritage said, “No such clarity can be found here. And this case is even more influential. The regulations coming out of the EPA and the Transportation Department are the most expensive in U.S. history. They are designed to remake, not to regulate, our energy systems.”
Texas piled on with its own major questions arguments, claiming that the rule was a major question because it could affect grid reliability because of the additional electricity demand and national security because of the need for imported batteries and materials for electric vehicles.
These arguments pay scant heed to what the Court actually said in West Virginia v. EPA when it struck down Obama’s Clean Power Plan for the electricity sector. The resemblance between the case is that both involve shifts from fossil fuels to cleaner energy sources — from coal to natural gas and renewables in West Virginia, and gas/diesel to electric vehicles (EVs) in the new regulation. But the resemblance ends there.
In West Virginia, the Court stressed that the U.S. Environmental Protection Agency (EPA) had used an obscure, seldom-used provision of the Clean Air Act to adopt an unprecedented regulation. Here, the provision is the core of an entire title of the statute and has been used many times, including past efforts to encourage electric vehicles.
In West Virginia, the Court also stressed that EPA had adopted the regulation only after Congress had rejected similar legislative efforts. Here, EPA is acting in the aftermath of major congressional efforts involving billions of dollars investment in charging stations, EV and battery manufacturing, and tax credits for EV buyers. Congress addressed the national security issue raised by Texas with incentives for American producers, and the grid reliability issue with provisions to encourage new transmission lines. In other words, EPA and Congress are moving in synchrony rather than at cross-purposes.
In the 2022 case, Heritage also attacked EPA on the ground that it was acting alone, rather than working with the Department of Transportation (DOT) to issue fuel economy standards. DOT isn’t allowed to consider EVs in setting fuel efficiency standards. The Supreme Court has suggested that EPA and DOT coordinate on these issues, and EPA did consult DOT before proposing the new regulations. But the Court did not say that the two agencies have to issue the same rules jointly. And even apart from climate change, EVs have the advantage of reducing smog and other air pollution. That’s why EPA authorized California to mandate some sales of zero emission vehicles as early as 1993, before the Supreme Court had even given EPA authority to regulate greenhouse gases. Vehicle emissions are EPA’s business, not DOT’s, and restrictions on DOT’s efforts to save oil have no bearing on EPA.
Yes, the proposed new car regulations are a big deal. So are many new regulations (and for that matter, many deregulatory actions). But that doesn’t subject them to the strictures of the major questions doctrine.
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Daniel Farber | April 24, 2023
Ever since the Supreme Court decided West Virginia v. EPA, conservatives and industry interests have claimed that just about every new regulation violates the major question doctrine. When the Biden administration ramped up fuel efficiency requirements through 2026, ideologues such as the Heritage Foundation and states like Texas were quick to wheel out this attack. No doubt the same attack will be made on the administration's ambitious proposed post-2026 standard. Maybe Judge Kacsmaryk in Amarillo, crusader against abortion pills and all things liberal, would buy that argument. But opponents won’t be able to handpick their judge this time, and the chances that this argument will win in the D.C. Circuit are slim to none.
Cinthia Moore | April 24, 2023
Nevada is considered one of the hottest states in America, and it consistently tops the list of places with the most heat-related deaths per year in the country. But what a lot of people don’t know is that it is also the second most polluted state, with wildfires, vehicles, factories, and the mining industry being the biggest sources. The deadly combination of scorching heat and poor air quality makes Nevada a hazardous place to work, especially for migrants who work under the heat of the sun. Even those working indoors are exposed to poor air quality with no climate controls every single day.
A.R. Siders | April 21, 2023
Dr. Syukoro Manabe, Nobel Prize winner in physics for his groundbreaking work on climate modeling, said that while climate modeling is difficult, “nothing is more difficult than what happens in politics and in society.” Social scientists, not surprisingly, cheered his words, having long argued that not only are social sciences not “soft” but also that numerous social disciplines — anthropology, sociology, economics, law, public policy, and more — are critical both to understand the consequences of climate change and to develop climate mitigation and adaptation strategies. For all that it centers on a cephalopod, The Octopus in the Parking Garage, Rob Verchick’s new book about climate resilience, is a book about why social science is and must be at the heart of climate action.
Allison Stevens | April 21, 2023
A list of environmental and climate-themed book recommendations by Center for Progressive Reform staff in honor of Earth Day.
James Goodwin | April 20, 2023
On April 18, congressional conservatives turned their favorite anti-regulatory weapon toward a new target: the Endangered Species Act (ESA). At a hearing of the Water, Wildlife and Fisheries Subcommittee of the House Natural Resources Committee, the majority pushed no less than three Congressional Review Act (CRA) resolutions aimed at blocking ESA protections. Testifying at the hearing in response to these attacks was Center for Progressive Reform Member Scholar Rob Fischman, a law professor at Indiana University Maurer School of Law and a widely recognized ESA expert.
Alice Kaswan, Catalina Gonzalez | April 20, 2023
The landmark Inflation Reduction Act gave the U.S. Environmental Protection Agency (EPA) $3 billion to fund a wide range of pollution reduction, clean energy, and climate resilience measures in the nation’s most marginalized communities. At issue now is how the agency will allocate the funds to eligible communities and projects.
Daniel Farber | April 19, 2023
As you’ve probably heard, the Biden administration has proposed aggressive new targets for greenhouse gas emissions from new vehicles. That’s great news. One really important aspect of the proposal relates to the justification for the proposal rather than the proposal itself. Following a recent trend, the justification is based on the factors specified by Congress rather than on a purely economic analysis. That may not sound like much, but it’s a really big deal. Among other things, this will shift influence on the regulatory process somewhat away from economists and toward lawyers.
Karen Sokol | April 18, 2023
On March 29, the United Nations (UN) General Assembly passed a landmark resolution asking the International Court of Justice (ICJ) for an advisory opinion on state obligations relating to climate change and the consequences of breaching them under several sources of international law, including the UN Charter, human rights treaties, and international customary law. The import of both the request and the opinion, however, is not just about Earth’s climate system and the extent of state obligations for protecting it; it is also about the potential for more equitable, just, and effective international governance.
Daniel Farber | April 17, 2023
On April 6, the Biden White House released proposed changes in the way the government does cost-benefit analysis (CBA). CBA has been a key part of rulemaking for 40 years. The proposal is very technical and low-key, but the upshot will be that efforts to reduce carbon emissions will get a leg up. In particular, the changes will support higher estimates of the harm done by each ton of carbon emissions (the “social cost of carbon” in economics lingo).