The Supreme Court’s June 30 ruling in the West Virginia v. EPA, as detailed by Lexi Smith on this site, substantially curtailed the Environmental Protection Agency’s ability to regulate climate pollutants.
Though the language of the decision itself appears to be narrow – limiting the extent of regulatory options for existing power plants under Section 111(d) of the Clean Air Act – it also elevated the newly-conceived “major questions doctrine.” That principle holds that any “major” new federal agency rules must clearly be within the scope of Executive branch regulatory authority and specifically delegated by Congress in laws written by Congress, like, in this case, the Clean Air Act.
The major questions doctrine could limit future climate regulations much more broadly than the seemingly limited scope of the West Virginia v. EPA ruling. Members of Congress generally lack the expertise, foresight, and time to describe in detail precisely what pollutants agencies like EPA will need to address in the future; or, for that matter, every parameter they may need to consider in developing the most efficient such regulations.
Given its polarized nature, Congress has proven itself incapable of updating decades-old environmental laws like the Clean Air Act that constrain climate rules, which were intentionally written broadly to give EPA wide leeway in establishing “the best system of emission reduction.” The major questions doctrine would require that any future revisions to legal language be much more specific, making Congress’ task even more difficult yet.
But despite the ruling, pathways to curb climate pollution still remain, both within and beyond federal agencies. Some of those options have relatively high prospects for success, with others more vulnerable to legal challenges in the wake of West Virginia v. EPA. [Continue reading…]