In West Virginia v. Environmental Protection Agency (EPA), six conservative Supreme Court justices joined in a majority opinion that will likely reverberate throughout the halls of federal buildings for years to come. It will also spell delay for U.S. climate action when time is in short supply. With Chief Justice John Roberts holding the pen, the majority officially struck down the EPA’s Clean Power Plan (CPP).
Newsrooms, government bureaucracies, and diplomatic posts have all posed a central question in response to the ruling: what does the decision mean for U.S. climate action?
Climate advocates have celebrated the court’s recognition of the authority of the EPA, not the states, to set the amount of pollution reduction that power plants need to achieve under the Clean Air Act. The next iteration of power sector regulation, which the agency has promised to produce in 2023, will likely rely on that finding. Although the court’s ruling limits the range of options the EPA has at its fingertips, the agency can, for example, require plants to install carbon capture equipment or burn less greenhouse gas-emitting fuels.
But the court’s ruling reaches well beyond the EPA. It creates a new hurdle the Biden administration must clear to achieve its 2030 goal of reducing emissions to 50-52 percent below 2005 levels. As it stands now, national emissions have only dropped about 15 percent from 2005 levels. The failure of the United States, the world’s largest historic emitter and second-largest current emitter, to fulfill its commitments would weigh down U.S. diplomatic efforts in international climate negotiations. Some experts opine that the ruling puts the goal nearly beyond reach. Others argue that as long as some big “ifs” are met—namely that Congress, the Biden administration, and states all take action this year to reduce emissions—the goal remains possible.
On a broader level, the opinion cloaks federal rulemaking in uncertainty, particularly when the proposed regulation relates to climate change. The court’s conservatives explicitly relied upon—for the first time in a majority opinion—the major questions doctrine. That doctrine holds that in “extraordinary cases” of “political and economic significance,” where an agency makes “unheralded” use of its authority, the agency must be able to point to a “clear statement” from Congress authorizing its action.
Since climate change involves a matter of vast political and economic significance, and since Congress has failed to pass major climate legislation for years, the EPA could not point to the clear authorization required by the court. Most other agencies may well also lack a clear statement on climate change, putting a bullseye on climate regulations. Indeed, even though the ink is hardly dry on the decision, some have already trumpeted the majority opinion as grounds for challenging proposed climate rules from the Department of Transportation and the Securities and Exchange Commission, as well as an existing Nuclear Regulatory Commission rule.
Uncertainty stemming from the decision will cause setbacks. Federal bureaucrats could forswear climate regulation altogether. If they do proceed and the regulation gets challenged in court, which it surely will, trial judges will need to determine whether the major questions doctrine applies, a determination for which the majority provided sparse guidance as Justice Elena Kagan noted in her blistering dissent. There will be delays once again as district court determinations wend their way up to the appellate court.
At some point greater judicial clarity will emerge as to the stretch of the Supreme Court’s ruling, but that will take time—perhaps a lot of time. And time is exactly what climate scientists tell governments they do not have. According to the latest UN consensus-based scientific assessments, every additional amount of heating leads to growing weather extremes. Moreover, if global temperatures go beyond 1.5 degrees Celsius above preindustrial times, the globe faces the threat of severe and potentially irreversible climate disruptions.
As federal rulemaking on climate change slows, the onus for climate action will fall heavily on state and local actors as well as the private sector. During the Trump administration, these actors stepped in to fill the void. However, even there, delays could ensue. State and local regulations take time and face the prospect of litigation. With fifty states and three territories potentially weighing in with differing requirements, confusion and costs could rise for industry. Given the choice, many in the private sector could choose to wait for greater predictability from government leaders before making costly investments that could cause shareholder angst.
At the end of the day, the Supreme Court left room for future rulemaking by the EPA in the power sector. But, by resorting to the major questions doctrine, it tightened the reins on regulatory action by all federal agencies. The climate will not wait for us to work through doctrinal ambiguities. Instead, as litigants push open the courthouse doors, the planet will continue to warm, bringing ever-more punishing extremes.