On June 30th, the Supreme Court weakened the Environmental Protection Agency’s (EPA) ability to protect the environment. In West Virginia v. EPA, a 6-3 decision authored by Chief Justice Roberts and joined by the other conservative justices, the Court ruled the EPA overreached in its efforts to curb air pollution. This decision forebodes more significant limitations on the EPA and other government agencies’ efforts to effectuate change. The ruling also makes clear what many environmental advocates already knew: the federal government, as currently designed, will not be the leader in the fight against climate change. Grassroots movements, community-oriented advocacy, and mass mobilization are essential in the effort to protect the planet, now more than ever.
The core question of West Virginia was the discretion the EPA, the agency charged with enforcing federal environmental statutes, had in interpreting the Clean Air Act (CAA). The purpose of the CAA is “to protect and enhance the quality of the Nation’s air resources so as to promote [] public health and welfare.” Specifically, the EPA must design the “best system of emission reduction.” During the Obama Administration, the EPA created the Clean Power Plan (CPP) to accomplish the task set out in the CAA. In the CPP, the EPA essentially devised a cap-and-trade system, where emissions operators (think power companies and the like) would have to invest in clean energy elsewhere if they polluted over a certain threshold. This “best system” decision was innovative for the EPA and part of its efforts to substantively engage in environmental protection.
The CPP never went into effect. Before promulgation, the Trump Administration replaced the CPP with the less protective Affordable Clean Energy (ACE) Rule. Both rules spent time in judicial limbo until the Biden Administration made both inconsequential in stating its intention to develop a rule of its own. Despite the CPP’s irrelevance, several conservative states, coal mine owners, and energy companies brought forth a challenge, and the Supreme Court agreed to hear the case.
Delegating decisions to agencies like those seen in the CPP is common practice. Congress knows it lacks expertise in specific areas and will not always be able to respond to an ever-evolving world. Instead, Congress endows agencies with the power to make the necessary decisions. Such delegation requires agencies to exert discretion in interpreting and enforcing legislation. Over the last four decades, the Court has been very deferential to agencies’ interpretations of the law, typically only intervening where an agency’s interpretation was wholly unsupported by the text of the statute.
In West Virginia, the Court cut against precedent in striking down the CPP. In doing so, the Court recognized the “major questions doctrine,” which the Court had hinted at in previous cases but never formally invoked. Applying this doctrine, the Court ruled the CPP was too significant a change to be left to the EPA, stating “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
How substantial a question needs to be before the new doctrine applies is unclear. As noted in Justice Kagan’s dissent, joined by the other two liberal justices, the standards set by the EPA were commonplace and unambitious. The industry, of its own accord, employed the techniques formerly championed by the EPA to exceed the EPA’s target emission reductions. As a result, the power industry overwhelmingly supported the EPA in this case. The decision makes apparent that the EPA and other federal agencies should expect further limitations on their powers; however, the scope of such curtailments remains unknown.
Nevertheless, two critical lessons from this decision are known. First, even under a liberal regime, the EPA set climate change goals so unambitious that the industry met them without prompting. Second, the Supreme Court will strike down even modest environmental goals the executive branch sets. U.S. leaders have been ineffective at using their position to stem climate change, and even if they were successful, the Supreme Court would undermine these efforts. The U.S. federal government is not the answer to saving our world. With an ineffective federal government incapable of passing and enforcing meaningful environmental legislation, grassroots mobilization and collective action are needed.
The above is not to say that individuals will be able to prevent global climate change by diligently recycling and refraining from eating meat on Mondays. These actions are not enough. The fact remains over 70% of greenhouse gas emissions can be traced back to just 100 companies. Nor is it to say that the federal government has no role in staving off the climate crisis, only that the federal government, in its present state, will not act unless pressured. Instead, preventing a complete climate disaster requires a multifaceted approach that considers and is led by those most impacted.
With a federal government largely unwilling and incapable of leading into the future, the task of producing real change falls, as it always does, on the people. Those most impacted already know what is needed to make the situation better. Communicating, organizing, and mobilizing brings these issues to light and suggests solutions that those in power are too afraid to attempt. Change requires global collective action. Change requires community-oriented organizations fighting to mitigate harm within the legal system while aiding advocacy efforts. Change requires municipalities and states picking up where the federal government failed. Change requires assembling in numbers so great that the federal government must reconceptualize its practices and employ the tools still at its disposal. Effecting said change requires mobilization not seen for generations, but such efforts might be the last hope at saving the planet.
By Logan Campbell, Fair Shake Legal Intern
