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economic or political consequences" because the electric power industry had met its goal long before the Trump EPA repealed it.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.
Showing 2,837 results
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."
Minor Sinclair | June 14, 2022
I’m thrilled to share that the Center for Progressive Reform features prominently in the pages of a forthcoming anthology of last year’s best writing on environmental law. Three of five articles selected for inclusion in the 2022 edition of the anthology were written or co-written by our esteemed Member Scholars — law professors who generously donate their time and expertise to help us achieve our mission to create a more responsive and inclusive government, a healthier environment, and a just society. A fourth article was authored by a Member Scholar who is on leave from the center while serving in the Biden administration.
Daniel Farber | June 9, 2022
Should regulators take into account harm to people in other countries? What about harm to future generations? Should we give special attention when the disadvantaged are harmed? These questions are central to climate policy and some other important environmental issues. I’ll use cost-benefit analysis as a framework for discussing these issues. You probably don’t need my help in thinking about the ethical issues, so instead I’ll focus on legal and economic considerations.
Rebecca Bratspies | June 7, 2022
Lessons from A Community Science Research Partnership in South-East Queens
Daniel Farber | May 25, 2022
In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.
Marcha Chaudry | May 24, 2022
Conventional wisdom holds that seeing "natural" and “organic" on product labels somehow means the companies selling those goods are using better, safer ingredients. However, these words often offer a false promise to consumers and the planet.
William Funk | May 24, 2022
The Fifth Circuit Court of Appeals ruling in Jarkesy v. Securities and Exchange Comm'n is a potential blockbuster. In 2020, the Securities and Exchange Commission (SEC) held that George Jarkesy had engaged in misrepresentation in certain public statements, thereby committing securities fraud. The SEC ordered Jarkesy to cease and desist and to pay a civil penalty. In addition, the agency barred him from certain securities industry activities.
Alex Kupyna | May 23, 2022
While the Center for Progressive Reform staff advocate for stronger protections from toxic chemical spills, none of our experts assumed that one of our own would gain firsthand experience on the matter.
Jake Moore | May 19, 2022
In 2001, an explosion at the Motiva Enterprises Delaware City Refinery caused a 1 million gallon sulfuric acid spill, killing one worker and severely injuring eight others. In 2008, an aboveground storage tank containing 2 million gallons of liquid fertilizer collapsed at the Allied Terminals facility in Chesapeake, Virginia, critically injuring two workers exposed to hazardous vapors. In 2021, the release of over 100,000 gallons of chemicals at a Texas plant killed two contractors and hospitalized 30 others. In addition to injury and death, workplace chemical spills and exposures contribute to an estimated 50,000 work-related diseases such as asthma and chronic lung disease each year, as well as nearly 200,000 hospitalizations. The Occupational Safety and Health Administration (OSHA) was created to reduce risks and hazards to workers, and to prevent incidents like these. However, following through on this promise has been another matter.