Jul 5, 2022

The Supreme Court's EPA ruling.

One of the court's final rulings is getting a lot of attention.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

The Supreme Court's ruling on the authority of the EPA (and how it might impact climate change goals). Plus, some quick hits from the holiday weekend and a chance to ask a question.

Photo by Chris LeBoutillier / Unsplash

Quick hits.

  1. At least six people were killed in a mass shooting at a Fourth of July parade in Highland Park, Illinois, a Chicago suburb. (The shooting)
  2. The Supreme Court ruled in favor of the Biden administration's authority to end the Remain in Mexico policy. (The ruling) Separately, Justice Stephen Breyer formally retired and Judge Ketanji Brown Jackson was officially sworn in. (The swearing in)
  3. President Biden said he supports an exception to the filibuster rules in order to codify abortion protections into law. (The comments)
  4. Akron, Ohio, declared a state of emergency after protests broke out over the fatal police shooting of Jayland Walker. (The protests)
  5. WNBA star Brittney Griner sent a letter to President Joe Biden pleading for help to be released from a prison in Russia. (The letter)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

The Supreme Court's EPA ruling. In a 6-3 ruling last week, the Supreme Court agreed with Republican-led states and coal companies that the 1970 Clean Air Act did not give the Environmental Protection Agency expansive power to regulate carbon emissions. The ruling has the potential not just to limit the EPA's ability to reduce emissions, but also to reduce the regulatory power of agencies across the executive branch of the federal government. The majority opinion was penned by Chief Justice John Roberts. All three liberal justices on the court dissented.

The crux of the case was the Clean Power Plan (CPP), the Obama-era regulatory framework designed to fight climate change by reducing carbon pollution from coal-fired power plants. That plan set individual goals for each state to cut power-plant emissions and directed companies to cut emissions by reducing output or shifting from coal-fired power to alternatives like natural gas or wind farm power generation.

However, the rule never went into effect. Several states and private parties immediately challenged its legality, and in 2019, the Trump administration repealed the CPP. It argued that the Clean Air Act, which gives the EPA the power to find the “best system of emission reduction” for buildings that emit air pollutants, exceeded the EPA's authority. The Trump administration argued that the EPA is only allowed to implement measures that apply to individual power plants, not to industry-wide goals like those laid out in the CPP. After repealing the CPP, the Trump administration replaced it with the Affordable Clean Energy Rule (ACE), which gave states and power plants more flexibility to comply with the rules..

"Last year the D.C. Circuit vacated both the Trump administration’s repeal of the CPP and the ACE Rule, and sent the case back to the EPA for additional proceedings. Section 7411, the court of appeals explained, does not require the more limited view of the EPA’s authority that the Trump administration adopted," Amy Howe reported. "The Supreme Court on Thursday reversed the D.C. Circuit’s ruling."

First, Justice Roberts explained that the Republican-led states and coal companies could challenge the rule. Since neither ACE nor CPP are currently in effect, the court had to first justify ruling on the merits, which Roberts said it could do given that the Biden administration was likely to re-impose a similar or more expansive regulatory standard.

Then Roberts argued that the greenhouse gases regulation violated the "major-questions" doctrine, an idea the court created that says Congress must first make it clear when it is giving an administrative agency the power to make decisions of "vast economic and political significance." Because Section 7411 of the Clean Air Act had been rarely used in the preceding decades, Roberts argued, there was little reason to think Congress believed the EPA could use it to implement the kind of sweeping regulation the CPP calls for (especially since Congress has rejected such sweeping regulation before).

Roberts said capping carbon dioxide emissions at a level that would force the nation to transition away from coal-generated electricity may be the right solution for climate change, but only Congress (or an agency it clearly grants that authority to) can make such a decision. The EPA, Roberts argued, did not have such authority expressly granted by Congress.

Justice Elena Kagan dissented and was joined by Justices Stephen Breyer and Sonia Sotomayor. In her dissent, Kagan argued that there was no reason for the court to take the case since the Biden administration was planning to issue a new ruling separate from the Clean Power Plan and the Affordable Clean Energy Rule. She also argued that Congress intended to give the EPA authority to navigate "generation shifting" precisely because of its expertise on environmental issues, and that the court was appointing itself "instead of Congress or the expert agency" as the decision maker on climate policy.

The ruling was the final major decision of a term in which the conservative majority struck down Roe v. Wade, expanded gun rights, and expanded religious rights. It uses logic consistent with arguments the court advanced during the pandemic to strike down workplace Covid testing and vaccine requirements and the CDC's federal eviction moratorium.

President Biden has said he hopes to cut greenhouse gas emissions by half before 2030, and was planning to lean heavily on the EPA to accomplish that goal. Power plants account for about 30% of the nation's carbon dioxide output.

Below, we'll take a look at some arguments from the left and right, then my take.


What the left is saying.

  • The left argues that the Supreme Court is sabotaging the very purpose of public health and regulatory agencies.
  • They contend that Congress and the courts should defer to the experts inside the regulatory agencies they created.
  • Some argue the court is overstepping its authority by taking the case at all.

The New York Times editorial board said the court is sabotaging efforts to protect the public health and safety.

"The court’s ruling constrains any effort to tighten restrictions on carbon dioxide emissions from power plants. It also threatens the Biden administration’s ability to impose new limits on tailpipe emissions from cars and trucks and on methane emissions from oil and gas facilities," the board wrote. "As the three members of the court’s liberal minority wrote in a stinging dissent, the majority’s decision strips the E.P.A. of the power 'to respond to the most pressing environmental challenge of our time.' The Biden administration, already struggling to persuade Congress to invest in renewable energy and compelled by Russia’s invasion of Ukraine to push for increased production of fossil fuels, once again finds its ambitious goals for confronting climate change slipping beyond reach.

"The court’s adversarial posture means that the administration must double down on its efforts to win congressional support for its spending plans," the court added. "President Biden and Democratic leaders should also press to pass legislation clarifying the E.P.A.’s authority to regulate emissions. Thursday’s ruling also has consequences far beyond environmental regulation. It threatens the ability of federal agencies to issue rules of any kind, including the regulations that ensure the safety of food, medicines and other consumer products, that protect workers from injuries and that prevent financial panics... The E.P.A. clearly has the legal authority to set an acceptable standard for emissions, in this case of carbon dioxide, and then to impose restrictions on emitters, in this case coal-fired power plants. The court did not contest these facts. Instead, it ruled that the Clean Air Act does not provide the E.P.A. with sufficient authority to achieve those emissions standards."

In MSNBC, Jessica Levinson said "this case strikes two heavy blows."

"The first blow is to the ability of the EPA to help save us from climate change-induced disasters such as flooding, droughts and extreme heat waves," Levinson wrote. "In the words of Justice Elena Kagan in her dissent, 'Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to the most pressing environmental challenge of our time.' As if that weren’t consequential enough, the second blow is that this decision is about pulling back on the power of all federal agencies, or the so-called administrative state," Levinson added. "The court is essentially requiring that federal agencies get specific authority from Congress before acting on major issues, such as climate change.

"In the end, the court is pushing the ball back into Congress’ court," Levinson said. "In the abstract that may not seem particularly consequential. Congress can act to provide the EPA with more authority. It is worth noting that it is not entirely clear how much specificity the court would actually require and whether Congress could achieve that level of specificity. But Congress almost certainly will not act at all. As we have seen over the past two years, even with a Democrat in the White House, even with Democrats holding a majority in both the House and the Senate, Democrats cannot act on major pieces of legislation without either getting 10 Republican senators to join them (insert laughter here) or finally getting rid of the filibuster."

In The New Republic, Simon Lazarus said "the masks are off."

"More than any of the cascade of ostentatiously hard-right decisions this term—more even than its Dobbs v. Jackson Women’s Health Organization repudiation of a half-century-old constitutional right to abortion—this decision confirms clues from prior terms: that the overriding priority of this court is augmenting its own power," Lazarus wrote. "Chief Justice John Roberts’s opinion for the court fairly flaunts his intention to claim the role of final arbiter of substantially any major battle it chooses to pluck from the nation’s policy or political agendas.

"Further, the decision manifests—indeed, as pointedly observed by liberal Justice Elena Kagan’s dissent, it reaffirms—that, on global warming–related matters, these ultraconservative justices’ modus operandi has 'from the beginning' been to 'obstruct' the EPA and to conform national policy to the agendas of their Republican patrons and sponsors, and the megadonors who fund those sponsors who, lest we forget, funded the campaigns that secured these justices’ nominations and confirmations," Lazarus wrote. "Forget the text or purpose of relevant law, fidelity to traditional conservative 'textualist' pretensions, or even the interests of relevant big businesses—in this case the electric power industry, which strongly supported the EPA’s climate strategy."


What the right is saying.

  • The right argues this case is not about climate change, but about limitations on  federal bureaucracy and authority.
  • Some say it is absurd to propose the EPA had the authority to implement regulatory guidelines as sweeping as the Clean Power Plan without Congress.
  • Many argue this should motivate Congress to do its job and legislate.

In The Washington Post, George Will said the decision was "the biggest" of all, and "the court got it right."

"The Clean Air Act authorizes the EPA to impose the 'best system of emission reduction' for carbon-emitting activities," Will wrote. "The EPA construes this as authorization for it to — if this seems 'best' — restructure the nation’s power sector by ordering 'generation shifting' in electricity production from coal to natural gas and renewables (e.g., wind, solar). Roberts, joined by Justices Alito, Barrett, Gorsuch, Kavanaugh and Thomas, invokes the 'major questions' doctrine. It holds that when an executive agency claims a power to order changes of vast economic and political significance — e.g., the EPA’s proposed multi-billion-dollar restructuring (mandatory capital investments, higher energy prices) of a huge sector of the economy — courts should be skeptical of such claims unless legislation clearly and explicitly authorizes it. Otherwise, the agency is illegitimately lunging beyond its law enforcement function.

“By pruning the EPA’s pretensions, the court has signaled a quickened interest in policing the separation of powers," Will said. "Hysteria is constant today, so hyperbole is, too — as when on June 20 the New York Times’s lead article — top of Page 1, columns five and six — warned readers to be frightened that the court might do what it in fact did Thursday. The Times said a ruling against the EPA could severely limit 'the federal government’s authority' to reduce carbon dioxide from power plants. But the court’s Thursday decision did not diminish the government’s authority; it said the primary authority must be explicitly exercised by Congress, which (although progressivism often forgets this) is part of the government. The Times also warned that the EPA case could eviscerate the' federal ability' to address climate change. No, the court has required only that more responsibility be taken by Congress, which is (although progressives often regret this) a federal institution."

In The Wall Street Journal, Kimberley Strassel said the justices sent a message to Congress.

"Sweep away the opinion’s numbing technical descriptions, and the ruling is a joy to read," Strassel said. "The six conservatives on the court, in an opinion by Chief Justice John Roberts, have officially declared the 'major questions doctrine'—a concept that has appeared in a handful of past court decisions—to be a living, breathing principle. The federal bureaucracy is no longer allowed to impose programs of major 'economic and political significance' on the country absent 'clear congressional authorization.' Hallelujah... That’s a bummer for the executive branch—and its army of bureaucrats—which for decades has been acting as if it were king.

"In this case, the Obama administration was frustrated Congress wouldn’t enact a law empowering it to regulate climate emissions," Strassel said. "So it magicked up the authority out of the 1970 Clean Air Act. Democratic administrations in particular are growing brazen in delegating to themselves these new superpowers... But it’s equally a bummer for Congress, which was essentially just told by the court to get off its lazy backside and resume the people’s work. It’s easy to bash the administrative state, but bureaucrats are simply filling a vacuum created by a legislature that these days can rouse itself to little more than naming a post office. 'Federal agencies must have the authority to regulate carbon!' every Democrat wailed in response to this week’s ruling. To which the obvious response is: Then give it to them! Pass a law. Do your job.”

In The Washington Examiner, Tim Carney said the left makes "audacious changes" then calls it radical to undo them.

"Chief Justice John Roberts, in his opinion, said Congress 'must point to ‘clear congressional authorization’ for the power it claims.' That is so obvious it should go without saying," Carney wrote. "The minority of the court's justices showed little concern for finding specific congressional authorization. Instead, they began their dissent by explaining that they think climate change is a really big deal, as if that was a relevant rebuttal to the constitutional rule that the executive cannot make laws.

"The minority took the words Congress wrote about what the EPA could force a power plant to do —adopt the 'best system' for reducing emissions at its own plant — and said those words basically give the EPA the power to create (to legislate) whatever the EPA believes is the 'best system of emission reductions' for greenhouse gases in the whole area power grid," Carney wrote. "The liberals' novel reading of the statute has no limits. Cratering the economy or curbing the population are the 'best system of emission reductions,' some argue. Under the court’s reading, Congress has delegated to the EPA the power to take steps that would curb birthrates, set immigration policy, or ruin our economy."


My take.

The circumstances of this case make it particularly odd.

For starters, I don't really think the court should have taken the case up in the first place, which is probably why the liberal justices focused so much on that in their dissent. As Jason Linkins argued, the decision to take the case at all was "tradition-smashing." Remember: There is no rule on the books for the parties to challenge here. The Biden administration has not replaced either the Obama-era Clean Power Plan or the Trump-era Affordable Clean Energy Rule.

A federal court issuing an "advisory opinion" was, before this ruling, extremely rare. It's a rather simple concept: The Supreme Court should only adjudicate live cases or controversies, not hypothetical future disputes. Otherwise, it is doing something closer to legislating. This has been true since 1793, when the Supreme Court refused to advise George Washington on the legal status of our relations with France's new government. It’s why Chief Justice John Roberts has previously emphasized the court’s role in America, which he says is “calling balls and strikes.” But you can’t call a ball or strike if no pitch has been thrown.

For a conservative majority that has spent so much of this term emphasizing deeply-rooted histories, precedent and textualism, the idea that it would take up this challenge in the first place validates criticism that this court’s decisioning is politically motivated.

The other bizarre thing is the tone of the coverage around the ruling. Both the right and the left have framed this as some sort of corporate-interests-rein-free-to-destroy-the-planet story, but the reality is actually quite the opposite. Business interests relevant to this case wanted the kind of regulation the EPA was pushing for. "Defending the EPA’s approach to regulating greenhouse gases as parties was a phalanx of megapower companies, including Con Edison, Exelon, National Grid USA, and Pacific Gas & Electric," Simon Lazarus rightly observed.

Indeed, industry experts understand that a shift away from coal-fired plants requires stable and predictable regulation, not the constant litigation and upheaval this ruling may invite. Despite the rules never even formally going into effect, the private industry has largely accomplished the goals Obama set out in his Clean Power Plan on its own, because the EPA accurately assessed what reasonable (and achievable) changes looked like to combat climate change. To hear the court now say that regulation was too sweeping and exceeded the agency's authority is head scratching, given that the EPA's assessment has now been totally validated.

With all this aside, the distinction the court seems to have grappled with is the difference between making laws and creating the rules that make laws function. Executive agencies, generally speaking, make rules based on Congress's legislation. If Congress bans drinks that have a dangerous mix of caffeine and alcohol, the FDA could determine what those levels are and then create rules to limit "X" amount of caffeine mixed with "Y" amount of alcohol from being present in the same drink. The difference is nuanced but important.

In this case, the Court is taking the position that the Clean Power Plan crossed the threshold into what it is now clearly defined as the "major questions doctrine." Instead of making rules to enforce Congress’s legislation, the Clean Power Plan would have created a set of rules that amounted to impactful legislation.

To be frank, I'm quite torn about this assessment. On the one hand, the EPA's authority to set acceptable emission standards for carbon dioxide seems obvious, as does its legal authority to then restrict emitters (like coal-fired power plants). On the other hand, Obama himself described the Clean Power Plan regulatory scheme as an effort to "remake America," an effort he pursued without specific Congressional authority. I certainly want regulatory agencies to expressly and clearly have the capacity to “remake” America before doing so.

The good news for anyone (like me) worried about clean air and climate change is that this ruling essentially confirms what we already know: We can't regulate our way out of climate change. The path to reducing carbon emissions looks the same today as it did before the ruling. We need investment and buy-in from the private sector, legislation from Congress, and state-level support. And, as Joseph Majkut explained, there is plenty of reason for optimism: The power sector just beat its emissions target by a decade, the cost of renewables and natural gas is still falling, and a reconciliation bill is still alive in Congress that could create tax credits for clean energy.

To sum all that up: The court took up a case about regulatory guidelines that never went into effect. It struck that plan down under the notion that the agency which implemented it exceeded its authority, despite the fact the private sector got there (early) on its own without those rules ever going into effect. The ruling was largely framed as a win for businesses to run unencumbered even though they actually supported the expansive regulation. And while the ruling is a major blow to the EPA's authority, it seems clear to me, given that entire industries are already outpacing them, the much needed emissions reduction goals are still achievable and the path to getting there is still the same.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Today's main topic took up a lot of space. To keep our newsletter digestible, we're skipping today's reader question. You can submit a reader question by replying to this email and writing in or filling out this form.


A story that matters.

Health insurers and employers began to post the prices they pay for healthcare services publicly last week, kicking off a massive Trump-era price transparency rule. These prices,   covering expenses like doctor’s visits and lab tests, became available publicly after the Centers for Medicare and Medicaid Services set a deadline of July 1 for private firms to begin complying with the rule. So far, the data is being published in massive, machine-readable digital file formats that are not easily accessible to consumers. "The insurer data, required under a separate federal rule issued in November 2020, is expected to cover much more of the healthcare ecosystem, wrapping in the prices for free-standing surgery centers, clinics, private doctor practices, labs and other types of medical-service providers," The Wall Street Journal reports.


Numbers.

  • 4 in 10. The number of Americans who live in a state, city or territory that has committed to reaching 100% clean electricity by 2050.
  • 9%. The percent of Biden's climate change agenda that has been enacted.
  • 61%. The percentage of Americans who want to see more done by Congress to address climate change.
  • 70%. The percentage of Americans who want to see more done by corporations to address climate change.
  • 33%. The percentage of Americans who said they are alarmed by global warming.

Have a nice day.

Over 100 countries have joined in a pact to make 30% of their oceans protected areas, free of fishing or drilling. Because the oceans produce half of the world's oxygen and absorb 31% of its carbon dioxide, they are critical to the environment's good health. Last week, Colombia's outgoing president Ivan Duque said Colombia had become the first country to achieve the goal of protecting 30% of its oceans. About 8% of the world's oceans are currently protected.


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