Federal regulatory power, including pollution and climate issues, could be gutted soon by Supreme Court

https://www.theguardian.com/law/2022/feb/25/supreme-court-west-virgina-epa-nondelegation-doctrine

How a court case over pollution could be used to unravel federal regulatory power

Rightwing groups are urging the supreme court to hobble not just environmental regulation, but Biden’s ability to govern

A coal-fired power plant with tall smokestacks is silhouetted against a golden yellow morning sky, as dark clouds of smoke or steam rise up from the left of the image.
The court’s conservatives may use West Virginia v EPA as a preemptive strike against environmental regulation, some legal scholars say. Photograph: J David Ake/AP

Noa YachotFri 25 Feb 2022 05.00 EST

On Monday the US supreme court will hear arguments in a group of cases that could have an immediate impact on the American government’s ability to respond to the climate emergency.

The consequences could be even more substantial, however, reaching deep into the Biden administration’s authority to govern.

The court will be considering the 2015 Clean Power Plan, a signature Obama program requiring states to lower greenhouse gas emissions from power plants. It was touted as critical to the achievement of the landmark Paris climate agreement, but its existence was short-lived: a coalition of states and energy groups sued to stop it, the supreme court blocked it and Donald Trump, self-professed lover of coal, repealed it when he took office.

The Biden administration said it would not reinstate the Clean Power Plan, even after a federal court invalidated Trump’s repeal, because the goals of the plan had already been met through market forces, and because it was considering a new rule to replace it. So it came as a surprise when the supreme court announced it would review the lower court’s decision.

Why is the court hearing a challenge to a plan that has never really been in effect, and never will be?

Richard Lazarus, a professor of environmental law at Harvard University, thinks the court may be interested in a preemptive strike against ambitious environmental regulation. “This is a shot across the bow,” he says. “We’re going to tell you what you can’t do in case you’re even thinking about it.”

But some court observers believe the case, West Virginia v EPA, may be an opportunity for the court’s conservative supermajority to take an even bigger hammer to the government’s regulatory power, helping to see through a Trump administration objective: the “deconstruction of the administrative state”.

A muscular decision could help upend the power of the government to regulate a range of issues, from air quality to workplace protections to drug safety, and mean an effective supreme court veto over Joe Biden’s agenda.

<img src="https://i.guim.co.uk/img/media/5db72c1af8cd0e8e4d6fe27536c17d8b3ee17c86/0_164_4912_2948/master/4912.jpg?width=460&quality=85&auto=format&fit=max&s=fd76fd31ce4e5d26a9b37a712424ea3b" alt="The Bruce Mansfield Power Station, a coal-fired power station operated by FirstEnergy on the Ohio River near Shippingport, PA.

There are a number of ways the justices could rule in the EPA case.

They could restrict the EPA’s powers under the Clean Air Act, the legal foundation for the Obama plan. They could more broadly target its power to address environmental concerns. They could also dismiss the case outright since the Clean Power Plan doesn’t actually exist.

Or they could rule in a manner with implications beyond the EPA, as a who’s who of rightwing groups, many linked by funding from billionaire Charles Koch, have urged them to do in briefs filed in the case.

By some counts, at least five justices have expressed interest in reviving a legal doctrine dormant since the 1930s, until recently considered fringe, which views much of the authority of the executive branch as illegitimate. Under an expansive version of that view, “most of government is unconstitutional”, Justice Elena Kagan has warned.

The case “could be extraordinarily important, it could be moderately important, or it could be a case the court just dismisses on a belated realization that there’s no live controversy at all,” says Kate Shaw, professor at the Cardozo School of Law and co-host of the Strict Scrutiny podcast, which covers the supreme court.

“The fact that the court took the case at all is concerning to me and suggests the court may want to use this case as a vehicle to really change the law,” she says.

Some believe the case could undo the US government as we know it.

In the 1930s, Franklin Delano Roosevelt’s New Deal created dozens of government programs and agencies to improve the US economy and create a social safety net. But the supreme court, in those years famously pro-business and prone to strike down social welfare legislation, thwarted him at every turn. In two decisions, it invoked a principle of “nondelegation” – a doctrine that says the constitution forbids Congress from transferring power to federal agencies to make rules.

In 1937, faced with FDR’s threats to expand the court in order to push his legislation through, the court did an about-face and began upholding New Deal laws. The nondelegation doctrine faded into obscurity and the administrative state flourished.

Ever since, the delegation of authority from Congress to agencies has been core to the functioning of government.

Congress passes broad legislation enshrining certain principles and instructs agencies to fill in and update the details. The Clean Air Act, for example, instructs the EPA to regulate harmful emissions, but leaves it up to the agency to determine how to do so. The Occupational Safety and Health Act gives the Occupational Safety and Health Administration (OSHA) the authority – recently restricted by the court – to issue standards regulating workplace safety.

Particularly central in an age of congressional gridlock, this model of government allows experts in federal agencies to issue rules without Congress needing to regularly pass detailed laws.

“Whether we’re talking about energy regulation, environmental regulation, workplace health and safety regulation, labor regulation – in each of those areas, Congress has passed broad statutes and given agencies a lot of discretion to implement those statutory directives,” says Shaw. “Depending on what the court says if it does reach the merits in this case, that could throw into question the permissibility of all of those delegations, which are in many ways the foundation of modern governance.”

In the last two decades, and with particular fervor since the Obama presidency, the nondelegation doctrine has gained traction among originalists – jurists who claim to adhere to a meaning of the constitution fixed at the time of its drafting – who insist America’s founders were opposed to Congress delegating regulatory power to agencies. (Scholars respond that the doctrine has no basis in history or in the constitution).

“Congress cannot duck its responsibility for making hard choices requiring compromise … by passing the buck to unelected, politically unaccountable administrative agents. The Constitution flatly prohibits Congress from delegating any of its legislative power to other entities,” according to a brief filed by the Koch-backed political advocacy group Americans for Prosperity.

“As Justice Thomas has observed: ‘The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects,’” the brief continues. Americans for Prosperity campaigned aggressively for the confirmation of Trump’s three supreme court nominees.

Sen. Sheldon Whitehouse, D-R.I., walks past people holding up the words "For the People" as he arrives for a rally in front of the Supreme Court, June 2021.

Conservatives on the supreme court have expressed varying degrees of sympathy for this view, most recently when they blocked the Biden administration’s vaccine-or-testing mandate for large employers.

In that case, three justices – Neil Gorsuch, Thomas and Samuel Alito – signed a concurring opinion, invoking both the nondelegation doctrine and the major questions doctrine, a related theory that says matters of major economic or political importance must be mandated by Congress. In a different case, Chief Justice John Roberts joined a dissent asserting the doctrine. Add to that signals from Brett Kavanaugh, and there are five justices who have voiced at least some support for using this arcane theory to undo the post-New Deal arrangement undergirding American government.

Lazarus, the environmental law professor, has some sympathy for a principled view that major agency action should have backing from Congress.

“The problem is, what do you do with that if you know Congress isn’t going to pass anything? We have a climate problem that if we don’t address [it] in the near term, it’s just an irreversible disaster at some point,” he says. “One is hard pressed to contend that the constitution requires such a catastrophic result.”

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