But Thursday the Supreme Court delivered a long-overdue check on the agency’s unbridled authority in West Virginia v. EPA. In particular, Chief Justice Roberts delivered a clear rebuke stating that “no” Congress did not give the agency the authority it had claimed at that the “view of EPA’s authority was not only unprecedented; it also effected a “fundamental revision of the statute, changing it from [one sort of] scheme of … regulation” into an entirely different kind.”
In other words,
the Supreme Court just affirmed that the rule of law applies to EPA and put the agency back in its appropriate place – as a regulator with limited authority, not as a director of the new world energy order.
Despite what hyperventilating activists may say, this is not the end of the federal government’s ability to curb greenhouse gasses. Rather it makes clear agencies do not have carte blanche authority to rewrite the law unless Congress clearly says to. For EPA in particular, the agency does not have the ability to use its limited authorities to reshape industrial sectors they do not like.
To fully understand the broader implications, a bit of history is warranted. At the heart of West Virginia v. EPA is the on-again, off-again rule referred to as the Clean Power Plan (CPP), whereby the Obama administration transformed a 1970s-era pollution control provision that applied to specific industrial facilities into an expansive weapon used to seize control of the nation’s energy grid. The agency’s legal justification for the rule was so counter to congressional intent and the interpretive norms of the Clean Air Act that even President Obama’s own constitutional law professor —a noted liberal icon — likened the rule to “burning the constitution.”
The Clean Power Plan rule never went into effect. In an unprecedented fashion, the Supreme Court issued a stay on the rule as the lower courts were considering a case on the merits. With the rule stopped in its tracks and the election of President Donald Trump, it was ultimately rescinded and replaced with a rule called the Affordable Clean Energy (ACE) rule. That agency action was challenged and the D.C. Circuit Court ultimately invalidated it sending it back to the EPA days before team Biden walked in.
The Clean Power Plan specifically applied to our nation’s utility sector, but the creators of this rule had much bigger plans. The CPP was a template for action whereby the EPA would slowly but surely reshape a range of U.S. industries to fulfill long standing political commitments.
Congress never granted EPA the authority to reshape entire industries or overtake actions long held by the states. Nonetheless, agency lawyers and their activist allies hoped they could get away with a new and expanded interpretation of their power by virtue of the Chevron doctrine.
Decided in 1984, the Chevron doctrine holds that courts must defer to agency actions, when statutes are ambiguous, so long as those actions are deemed reasonable. The federal government was meant to work alongside states to achieve environmental goals, not coerce them into accepting economically damaging outcomes.
But when agencies attempt to take actions that go far beyond their traditional authorities and have the potential for significant, consequential impacts, there is another more applicable legal doctrine referred to as the “major questions doctrine.” It holds that without a clear statement from congress to suggest otherwise, courts should not defer to agency actions that are of “vast economic or political significance.”
This ensures political decisions are left to top level policy makers that can consider an array of competing interests and who are held accountable by voters.
From day one the Biden administration has instituted a “whole of the government” effort to push extreme policies like the Green New Deal via regulatory fiat. The Supreme Court’s willingness to clarify the agency’s scope of authority could not have come at a better time.
They are attempting to apply the same expansive approach to departments charged with national defense and market stability among others. This decision makes clear that agencies do not have the authority to rewrite our entire economy, even at the behest of well-connected zealots.