CT Blue

The Supreme Court is now considering how it will go about destroying the ability of the federal government to deal effectively with climate change. The situation is explained at length here I’ll just quote the gist, which is long enough:

West Virginia v. Environmental Protection Agency is one of the most frustrating cases that the Supreme Court has heard in many years. It involves an Obama-era environmental regulation that never took effect, that President Joe Biden’s administration has no intention of reinstating, and that imposed such minimal obligations on power plants that it’s not clear the regulation really required them to do anything in the first place.

But a majority of the Supreme Court appears likely to strike down this undead environmental regulation after Monday morning’s oral arguments in the West Virginia case, even though the conservative justices seem to have struggled to figure out how they could write an opinion that actually does so.

Depending on how they decide to resolve that question, a decision striking this zombie regulation could potentially gut the EPA’s ability to control emissions from power plants.

West Virginia concerns the Clean Power Plan (CPP), a 2015 policy that was widely touted as President Barack Obama’s most ambitious effort to fight climate change when it was announced. Obama’s Environmental Protection Agency projected that the CPP would lower carbon emissions from US power plants by about a third from where they stood in 2005.

But the CPP turned out to be cursed. In a party-line vote in 2016, the Supreme Court suspended the plan before it could actually do anything. Then Donald Trump became president, and Trump’s EPA formally repealed the CPP and replaced it with a much weaker rule.

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Yet, while West Virginia is really a case about a defunct rule that wouldn’t have accomplished much even if did go into effect, most of the justices appeared unbothered by arguments that the Court shouldn’t even be hearing this case in the first place.

Instead, much of Monday’s hearing focused on whether the Court should apply its “major questions doctrine,” a judicially created doctrine that limits the power of federal agencies to hand down particularly consequential regulations.

As explained above, longstanding legal doctrines create a presumption in favor of a federal agency’s interpretation of a federal statute when that statute is ambiguous. The major questions doctrine, however, flips that presumption on its head — essentially pushing courts to reject an agency’s reading of a federal law if the agency attempts to do anything too consequential.

As the Court explained the major questions doctrine in Utility Air Regulatory Group v. EPA (2014) that “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” So, under this doctrine, when regulations have “vast economic and political significance,” the Court will block the regulation, unless the statute very clearly gives the agency authority to issue such a rule.

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The problem with the major questions doctrine is that it is extraordinarily vague. Determining which regulations have “vast economic and political significance” necessarily requires the justices to exercise subjective judgment, and they can apply such judgment selectively to strike down regulations they don’t like and uphold regulations they do approve of.

Monday’s oral arguments seemed to confirm that it will be difficult to rein in the doctrine and place principled limits on it — if that’s even something this Court would like to do. Many of the justices spent the hearing fumbling about for a way to read the major questions doctrine so that it would apply to a defunct regulation that hardly does anything.

First off, I’m not sure when in one’s first year of law school you would know enough to see that this case is moot, but it would be fairly early on. In fact, it’s as moot as moot can be. The rule is not in effect and never went into effect. Moot cases are subject to dismissal. So the court is keeping it alive solely to use it as a vehicle to find a way to prospectively tie the hands of the federal government whenever it tries to deal effectively with climate change or any other issue in a way that upsets the feelings of the various industries that make money polluting the planet or are in some other way misusing their power. The major question doctrine is a new one on me. It appears to be custom made to allow the court to gut any regulation it doesn’t like while upholding any regulation it does. After all, it’s hard to see how the case realistically presents a major question when it is moot. So the ruling, if based on that doctrine, as seems likely, will likely presage a future in which the federal government will be unable to address matters of vital concern within the jurisdiction of federal agencies without the blessing of the Supreme Court, which will be bestowed less and less frequently. We are really in trouble as a nation.