Supreme Court Could End Regulation of GhG, and All Polluters

November 11, 2021

Yale Climate Connections:

The Supreme Court agreed to hear a case, West Virginia v. EPA, challenging the Environmental Protection Agency’s authority to regulate greenhouse gases as pollutants.

The case presents an opportunity for the Court to overturn key climate precedents and potentially change the relationship between federal agencies and Congress. The decision could have far-reaching consequences for federal climate policy and perhaps even for federal agencies more broadly.

How did we get here, how far might the Court go, and what consequences might the case have for climate change regulation and executive branch authority?

EPA’s authority to regulate greenhouse gases: Massachusetts v. EPA

In a groundbreaking decision in 2007, the Supreme Court held 5-4 that EPA has authority to regulate greenhouse gases under the Clean Air Act. During the Bush administration, environmentalists petitioned the agency to issue a rule on the regulation of greenhouse gases. The Bush EPA denied the petition, and environmental groups, states, and local governments challenged that decision in court. The Supreme Court’s decision turned on whether greenhouse gases like carbon dioxide fall under the definition of “air pollutants,” which the Clean Air Act authorizes EPA to regulate.

The Court concluded that carbon dioxide and other greenhouse gases are air pollutants under the Clean Air Act’s definition, and also noted that the EPA cannot refuse to regulate greenhouse gases for policy reasons outside the Clean Air Act itself, as the Bush administration had done. The Court ordered EPA to either issue a finding that greenhouse gases are dangerous to the public health and welfare, the first step toward regulation, or to give a reasoned explanation for why greenhouse gases do not meet the threshold of endangerment outlined in the Clean Air Act. The agency ultimately found that greenhouse gases are dangerous to the public health and welfare, which formed the foundation for EPA’s regulation of greenhouse gases.

That Supreme Court’s ruling in Massachusetts v. EPA was a 5-4 decision, and environmental advocates leading up to it were not at all certain that they would win the case. In fact, the case was controversial at the time because many environmentalists worried that it would result in a harmful adverse ruling. The four liberals on the Court in 2007, Justices Souter, Ginsburg, Breyer, and Stevens, were joined by Justice Kennedy to form a majority. But Chief Justice Roberts and Justices Thomas, Scalia, and Alito dissented.

Chief Justice Roberts’s dissent (joined by Justices Scalia, Thomas, and Alito) argued that the states, local governments, and environmental groups challenging the EPA should not have been allowed to sue in the first place because they lacked standing: One requirement of standing is a “concrete and particularized” injury. Chief Justice Roberts argued that harms from climate change affect everyone, so the injury in question was not sufficiently individualized and personal to support a lawsuit.

Justice Scalia’s dissent (joined by Chief Justice Roberts and Justices Thomas and Alito) focused on the Clean Air Act and argued that the Act is meant to address conventional air pollutants that harm human health directly through exposure, such as inhalation. He maintained that the Act was not meant to address the broader issue of climate change, and that greenhouse gases therefore did not fall under the definition of “air pollutants.”

Of course, the Supreme Court’s composition has changed significantly since 2007. With a 6-3 conservative-liberal divide, the conservative dissenters’ objections to Massachusetts v. EPA may now represent the majority view.

The ‘worst case scenario’: What could West Virginia v. EPA bring?

There are reasons to expect that the Court will show restraint when it hears the upcoming challenge to EPA’s authority in the West Virginia v. EPA case. But first, let’s walk through the worst potential outcomes from the perspective of climate advocates.

As suggested above, the Court could overturn its decision in Massachusetts v. EPA and effectively take away EPA’s authority to regulate greenhouse gases. With such a ruling, EPA could no longer issue rules directly regulating greenhouse gas emissions, and past greenhouse gas rules issued under its Clean Air Act authority would be invalid.

Richard Lazarus, a Harvard Law School professor who recently wrote a book about Massachusetts v. EPAcalled the Court’s decision to hear West Virginia v. EPA “the equivalent of an earthquake around the country for those who care deeply about the climate issue.”

The consequences of the case could even reach far beyond climate regulation. The case presents an opportunity for the Court to revive the “nondelegation doctrine,” a mostly defunct principle that purported to limit Congress’s authority to delegate legislative power to executive branch agencies. The doctrine comes from Article I of the Constitution, which says that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” The Supreme Court has not used the nondelegation doctrine to strike down agency action in more than 80 years.

Implications of enforcing nondelegation doctrine

The practical consequences of enforcing the nondelegation doctrine would debilitate the current system of executive branch rulemaking and regulation, subject to judicial review and congressional oversight. If Congress were to do all the rulemaking currently done by EPA, for instance, environmental regulation would become virtually impossible to enact. Congress in that case would have to make thousands of granular and technical decisions about environmental policy, even though we know it can barely pass major legislation as it is.

More broadly, nondelegation could mean that much of the work done by all federal agencies would have to be done instead by a clearly ill-equipped Congress. Even without current gridlock on Capitol Hill, the sheer volume of policy decisions Congress would have to make would be completely unworkable.

While this outcome sounds unlikely and illogical to those who support federal agency regulation, several of the current Justices at various times have expressed interest in weakening the administrative state and deregulating industry. For them, the nondelegation doctrine may be an attractive principle.

Notably, for instance, in a case called Gundy v. United States in 2019, four of the conservatives (Chief Justice Roberts and Justices Gorsuch, Thomas, and Alito) showed a willingness to revisit the nondelegation doctrine. At that time, Justice Kennedy had retired, and Justice Kavanaugh had not yet been confirmed, so the case was 4-4. With Justices Kavanaugh and Barrett now on the court, there appears to be some chance that reviving the nondelegation doctrine would garner the support of five or even six Justices.

The petitioners – West Virginia and North American Coal Corporation – that brought the appeal in West Virginia v. EPA explicitly suggested that this case could be an opportunity for the Court to reconsider nondelegation: “Nothing in the statute [the Clean Air Act] approaches the clear language Congress must use to assign such vast policymaking authority – assuming, of course, it can delegate enormous powers like these in the first place.”

In short, the worst-case scenario from the perspective of climate action advocates is that the Supreme Court takes away the EPA’s authority to regulate greenhouse gases and also revives the nondelegation doctrine, which would strip most federal agencies of much of their regulatory power.

Reasons for a less sweeping outcome

Let’s now consider some reasons the Court may be unlikely to completely overturn Massachusetts v. EPA or fully embrace the nondelegation doctrine.

First, Chief Justice Roberts, and increasingly Justices Kavanaugh and Gorsuch, appear keenly mindful and protective of the Court’s reputation and legacy. They have tended to look out for the public perception of the Court and avoid decisions that would have provoked especially strong public backlash. Recent examples include upholding the Affordable Care Act and civil rights protections for the LGBT community.

These cautious impulses may be heightened by the looming threat of court reform, which could gain more momentum if a particularly controversial conservative decision were issued. Given the strong public backlash likely to result from a decision taking away EPA authority to regulate greenhouse gases and/or reviving the nondelegation doctrine, the Court may proceed with caution.

The Court’s precedents in other fossil fuel cases provide another reason for a more limited approach. Massachusetts v. EPA created the basis for the Court to deny other lawsuits based on the harms fossil fuels cause.

In American Electric Power v. Connecticut, the Court heard a public nuisance challenge to greenhouse gas pollution. Public nuisances are acts, conditions, or conduct that interfere with the rights of the public generally. Connecticut’s nuisance claim rested on federal common law, a form of judge-made law. Judge-made law can be displaced by laws passed by Congress. The Court decided that because Congress had already granted EPA authority to regulate greenhouse gases under the Clean Air Act, Congress had displaced judge-made law in this area. If the Court were to overturn Massachusetts v. EPA completely, public nuisance challenges could be brought against fossil fuel companies again, an outcome conservative Justices are likely to want to avoid.

Finally, even if EPA – and therefore the executive branch agencies as a whole – were to lose authority to regulate greenhouse gases directly under the Clean Air Act, it could still indirectly reduce greenhouse gas emissions by targeting co-pollutants that fall more squarely under Clean Air Act authority. For instance, greenhouse gas emissions are often accompanied by particulate matter, nitrogen oxides, sulfur oxides, volatile organic compounds, and air toxics. By regulating those co-pollutants, EPA can bring down greenhouse gas emissions without exercising any direct regulatory authority over them. Of course, if the Court fully embraces the nondelegation doctrine, EPA’s authority to regulate those other pollutants could also be jeopardized. But, as mentioned above, some Justices may stop short of such a decision in light of concerns about the Court’s legacy and risks of a backlash.

In short, while the Supreme Court’s decision to hear West Virginia v. EPA creates plenty of anxiety for climate advocates, there are also reasons to think that the Court will not fully overturn Massachusetts v. EPA. And even if the Court takes away EPA’s authority to regulate greenhouse gases, the agency may still have other avenues available for bringing down emissions. A broader embrace of the nondelegation doctrine would pose more sweeping problems for environmental regulation, but the Court’s recent cautious approach to hot-button issues suggests it is more likely to make only incremental changes to that doctrine.

Lexi Smith is a third-year student at Yale Law School. She studied environmental science and public policy as an undergraduate at Harvard, and she worked as an advisor to the Mayor of Boston on climate policy before enrolling in law school.

2 Responses to “Supreme Court Could End Regulation of GhG, and All Polluters”

  1. ecoquant Says:

    Yes, with respect to Lexi Smith, until I hear panic from a place like Legal Planet, I’ll see what they say. Of course, they may have commented and I missed it. Don’t put law as a priority.


    Chief Justice Roberts argued that harms from climate change affect everyone, so the injury in question was not sufficiently individualized and personal to support a lawsuit.

    this came up in some of the arguments and responses from courts with respect to Juliana v United States. My uneducated take on these, especially from the recent rounds, is that the government accepted that the plaintiffs had standing, and courts agreed. Of course, except for procedural issues, SCOTUS never heard Juliana. My take on a ruling embodying the opinion in the quote is that it would throw Juliana out.

    However, in my opinion, it would also throw the U.S. Constitution out. No, not completely, but it would probably make it an irrelevant institution for solving some of the most serious problems the United States faces in the 21st century. It certainly would make the court system irrelevant.

    At a rally for the plaintiffs in Juliana v United States in October 2018 at the Moakley Federal Courthouse in Boston, I was privileged to speak. I said in part:

    The government argues that Juliana v United States is an intrusion of the judiciary upon executive privileges. They argue it would thereby precipitate a Constitutional crisis. Administrative Procedures Act or not, what’s on trial here is not only the White House and, by extension, Congress, but the very Constitution itself: a true Constitutional crisis.

    For should the plaintiffs of Juliana fail, the last government branch, the judiciary, abdicates responsibility for solving this urgent problem. And so the Constitution will have failed one of its existential requirements: To provide for the common defense. For Nature has laws, too, and we have been breaking them for a long time, ever more intensely. But Nature does not have courts of grievance or redress. Nature just acts. In a catastrophic sea level rise, perhaps triggered by a collapse of a distant ice sheet, Moakley Courthouse itself, the land you stand on would be lost, and all that there [gesturing towards Boston inner harbor].

    While disappointing, were Juliana to be overturned, this should not be a reason for despair. It would not mean the Constitution should be replaced. It would just mean it is useless for solving certain kinds of critically important problems. Its failure would imply the Constitution is becoming a dusty, old thing, irrelevant, like the Articles of Confederation are to us, a ceremonial relic. Let’s hope not.

    There will be solutions for solving climate in any case, Constitution or not. They may well be horrifically expensive. And, while there’s no solution without first zeroing emissions, solutions will exist. These will lie beyond the Constitution, I hope Chief Justice Roberts and his colleagues understand the import of that.

    On a wall over there, on the Moakley Courthouse, there is an excerpt from the Constitution of the State of Maine. It reads:

    Every person, for an injury inflicted on the person or the person's reputation, property or immunities, shall have remedy by due course of law; and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay.

    May it be so.

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