Supreme Court to hear a case that could limit the EPA's power to fight climate change The outcome of the case could also hamstring the authority of all agencies, from the EPA to the Securities and Exchange Commission to Federal Reserve Board.

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Supreme Court to hear a case that could limit the EPA's power to fight climate change

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A MARTINEZ, HOST:

The U.S. Supreme Court will hear arguments today in a major environmental case that could hobble the ability of federal agencies to regulate air pollution and potentially much more. NPR legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG, BYLINE: Today's case has been years in the making. It actually began in 2009, when the Obama administration faced an unpleasant reality. You can't address climate change without an international agreement. And as environmental law expert Richard Lazarus puts it...

RICHARD LAZARUS: The other nations would not do anything unless the United States went first and showed it was serious about it.

TOTENBERG: So the Obama administration set about doing that, first getting the auto industry to reduce carbon emissions and then addressing the country's single largest carbon emissions problem, coal-fired power plants. Instead of regulating the plants themselves, the EPA set relatively strict carbon limits for each state and encouraged the states to meet those limits by transitioning to alternative sources of energy - wind, solar, hydroelectric power and natural gas. The goal of the plan was to produce enough electricity to satisfy U.S. demand in a way that lowered greenhouse emissions. And the concept worked. Indeed, it worked so well that even after the Clean Power Plan was temporarily blocked by the Supreme Court and then repealed by the Trump administration, market forces continued the trajectory. Most utilities continued to abandon coal as too expensive so that, as the Sierra Club's Andres Restrepo observes...

ANDRES RESTREPO: In fact, even without the regulation in place, the industry achieved that level of reductions in 2019 - 11 years early.

TOTENBERG: That, however, didn't stop the coal industry, West Virginia and 16 other states from continuing their fight against the now-defunct Obama plan. Presumably, they did that to prevent the plan from being resurrected. They appealed to the Supreme Court. And as Harvard's professor Lazarus observes, the Biden administration then formally abandoned the Obama plan and pledged to write a new rule that would regulate only the coal-fired plants themselves.

LAZARUS: They unilaterally surrendered the Clean Power Plan. They buried it. And they told the court, it's gone. There's no more case.

TOTENBERG: But the court, in an unusually muscular assertion of its power, still agreed to review the now-revoked plan. Why is no secret. To one degree or another, the court's six-justice conservative supermajority has been itching to limit the power of regulatory agencies and potentially even the power of Congress. In recent cases, the court's conservatives have begun to outline something they call the major questions doctrine, which could apply to all agencies, from the EPA to the Securities and Exchange Commission to even the Federal Reserve Board. In general, it's far less deferential to agencies. And specifically, the justices, in varying degrees, are beginning to insist that Congress more definitively authorize new policies or directions, even when the language of a statute gives an agency broad power. Lawyer Tom Johnson previously worked on this case in opposition to the Clean Power Plan. He defines the major questions doctrine this way.

TOM JOHNSON: Has Congress spoken clearly enough to tell a federal agency that you can create a program that has substantial effects on the American economy? - here, reshaping the energy economy by determining what mix of clean power and coal-operated power we should have.

TOTENBERG: Johnson argues that the Clean Power Plan did that by setting the requirements for coal-fired plants lower than was economically feasible unless they could be offset by savings from alternative energy sources. But the major questions doctrine is only one new twist that some of the court's conservatives have advocated. Another is something called the nondelegation doctrine. As some conservatives see things, Congress is quite limited in how much regulatory power it can give to executive agencies.

Ironically, the last time this kind of constitutional objection reached the Supreme Court in 2001, Justice Antonin Scalia, a conservative icon, rejected the challenge to congressional delegating authority, and he did it in an EPA case. At the time, no member of the court except Clarence Thomas envisioned constitutional limits on the power of Congress to delegate regulatory authority. But Thomas is still on the court, and now he's been joined by other conservative justices, some of whom appear eager to make his views a reality. Nina Totenberg, NPR News, Washington.

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