Neil Gorsuch’s dream case could be the Earth’s nightmare.
The Supreme Court announced late last week that it will hear four very similar cases — all likely to be consolidated under the name West Virginia v. Environmental Protection Agency — which could prove to be some of the most consequential court decisions in recent US history.
That’s a bold statement, so allow me to explain.
The cases are the latest chapter in the seemingly never-ending litigation over the Clean Power Plan, arguably former President Barack Obama’s boldest effort to fight climate change. Though the plan was never implemented, it still exists in a zombie-like state. A federal appeals court decision revived the plan last January, but the Biden administration said in February that it would not reinstate Obama’s policy.
Even though it’s no longer likely to be implemented, the petitioners in the West Virginia case — red states, energy companies, and owners of coal mines — are fighting to get the Court to rule that the federal Clean Air Act does not authorize Obama’s plan. More importantly, they call for new limits on the Clean Air Act that would severely restrict the Environmental Protection Agency’s ability to reduce greenhouse emissions in the future.
But that’s only the tip of the iceberg. At least some of the parties in the West Virginia litigation claim that it is unconstitutional for the EPA to take the sort of aggressive strides against climate change that the Obama administration took in its Clean Power Plan. This theory wouldn’t just strip the EPA of much of its power to fight climate change, it could potentially disable Congress’s ability to effectively protect the environment.
And even this description of the West Virginia litigation doesn’t fully capture the stakes. The most aggressive arguments against the Clean Power Plan wouldn’t just apply to environmental regulations — they could also fundamentally alter the structure of the US government, stripping away the government’s power on issues as diverse as workplace safety, environmental protection, access to birth control, overtime pay, and vaccination.
In this scenario, hundreds of laws could be weakened or even deactivated. Many of them would be gone for good, and reenacting any of these laws would require passing legislation through a bitterly divided Congress.
So West Virginia is a monster of a case — potentially the culmination of a conservative vision incubated at the Federalist Society for years, and long championed by conservative activists such as Justices Neil Gorsuch and Brett Kavanaugh. Indeed, a majority of the Court has already expressed sympathy toward Gorsuch’s plans to shrink the power of federal agencies, which is a strong sign that the West Virginia petitioners are likely to prevail on at least some of their claims.
In the worst-case scenario for the Biden administration, the West Virginia case could make President Joe Biden the weakest president of the United States in over 80 years, and it could give a Supreme Court dominated by Republican appointees a veto power over huge swaths of federal policy.
Buckle up. Because the United States will be a very different place if the Court’s right flank gets its way in West Virginia.
The West Virginia litigation seeks to permanently entrench Trumpian environmental policy
The heart of the West Virginia case is a conflict between Obama’s environmental policy and the policy advanced by his successor, former President Donald Trump. The red states, power companies, and mining interests behind this lawsuit all hope to entrench Trump’s policies — potentially forever.
The Clean Air Act requires certain power plans to use the “best system of emission reduction” that can be achieved using existing technology, while also taking into account factors such as cost. This scheme raises an obvious question: Who shall determine what, exactly, is the “best system of emission reduction” at any given moment?
Under the Clean Air Act, the answer to that question is the Environmental Protection Agency. It’s the EPA’s job to study changing technologies, determine when a new breakthrough should be adopted by power plants, and to order those plants to use that technology by issuing binding regulations. (Under certain circumstances, a power plant does not have to use the exact same technology preferred by the EPA. But power plants that use alternative methods typically will only be allowed to do so if they can achieve the same levels of emission reduction that would be achieved using the EPA’s methods.)
The Clean Power Plan didn’t simply call upon coal-firing power plants to install devices that would make them burn more efficiently. It also called for power plants to shift away from coal and toward cleaner methods of generating energy, including both natural gas and methods that produce no emissions at all, such as solar.
The West Virginia petitioners claim that EPA cannot require such a shift. And these parties have always been likely to prevail before a judiciary dominated by Republicans. In 2016, just days before Justice Antonin Scalia’s death briefly denied Republican appointees a majority on the Supreme Court, the justices voted 5-4 to halt the Clean Power Plan.
For a while, the Clean Power Plan’s opponents had powerful allies, in Trump and his EPA. In 2019, Trump’s EPA announced a new policy, euphemistically known as the “Affordable Clean Energy” (ACE) rule, which replaced the Clean Power Plan with much weaker rules.
The Trump-era rules urged coal plants to install technologies, such as upgraded soot-blowers and boiler feed pumps, which could marginally reduce emissions — and that’s pretty much it. As a federal appeals court explained in an opinion striking down these rules, “the EPA predicted that its ACE Rule would reduce carbon dioxide emissions by less than 1% from baseline emission projections by 2035.” And even that prediction was optimistic. Trump’s EPA acknowledged that its recommended technologies might wind up increasing emissions because they would reduce the cost of producing energy with coal.
This appeals court opinion is now being reviewed by the justices in West Virginia, and the various parties that brought this case urge the Court to state definitively that the Clean Power Plan is not allowed. Such a decision is likely to fundamentally alter the EPA’s powers in ways that could make it very difficult for the Biden administration — or any future administration — to abandon Trump’s policies.
How federal agencies shape policy
The Clean Air Act relied on a type of governance that is ubiquitous in federal law. Congress lays out a broad policy — in this case, that power plants must use the “best system of emission reduction” — and then delegates to the EPA the task of implementing that policy through a series of binding regulations.
Countless federal statutes rely on a similar structure. The Affordable Care Act, for example, requires health insurers to provide certain preventive treatments — such as birth control, many vaccinations, and cancer screenings — at no additional cost to patients, and it delegates the task of determining which treatments belong on this list to experts at the Department of Health and Human Services. The Department of Labor may raise the salary threshold governing which workers are eligible for overtime pay, in part to keep up with inflation.
There are several reasons why this sort of governance, where a democratically elected legislature sets a broad policy and then delegates implementation to a federal agency, is desirable. For one thing, Congress is a dysfunctional mess. If a new act of Congress were required every time environmental regulators wanted power plants to install new technology, it’s likely that those plants would still be using devices that were on the cutting edge in 1993.
Delegating power to agencies also ensures that decisions are made by people who know what they are doing. Imagine, for example, if Congress had to pass a law every time the Food and Drug Administration wants to make a new drug available to the public. Even if Congress had time to vote on such a decision, most members of Congress know very little about biology, chemistry, or medicine.
Delegation also insulates important decisions from political horse-trading. The decision about whether to approve a new drug should be made by scientists in the FDA, not by lawmakers who might be concerned that the drug’s manufacturer is in Arizona, and that they need to butter up Sen. Kyrsten Sinema (D-AZ) to secure her vote for the Build Back Better Act.
Nevertheless, a majority of the Supreme Court is very hostile to the idea that federal agencies should be allowed to set policy, and at least five justices have signaled that they want to revive a largely defunct constitutional doctrine known as “nondelegation.”
Nondelegation is the idea that the Constitution places strict limits on Congress’s ability to delegate power to federal agencies. Although the Supreme Court briefly wielded the nondelegation doctrine to strike down New Deal policies that gave a simply extraordinary amount of regulatory power to President Franklin Delano Roosevelt, this doctrine largely lay dormant for generations. Indeed, for many years, the Court’s decisions typically emphasized how reluctant judges should be to second-guess agency regulations.
During the Obama administration, however, the Court’s right flank started agitating for limits on agencies’ authority that haven’t been seen in generations. Under the strongest form of the nondelegation doctrine, the version advocated by Justice Clarence Thomas in a 2015 opinion, agencies are simply forbidden from issuing binding regulations of any kind. Thomas believes that any governmental decision that “involves an exercise of policy discretion” also “requires an exercise of legislative power.”
So laws like the Clean Air Act are forbidden, if Thomas gets his way. If the United States wants to require coal plants to install a new device that will reduce emissions by 2 percent, Thomas would require Congress to enact a new law.
Most of the justices are unlikely to go that far, but a majority of the Court has rallied around the approach Justice Neil Gorsuch laid out in his dissenting opinion in Gundy v. United States (2019). A federal law authorizing an agency to regulate, Gorsuch wrote in Gundy, must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
This vague new standard is inconsistent with the framers’ understanding of the Constitution. Early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials.
Moreover, Gorsuch’s approach would effectively consolidate an enormous amount of power within the judiciary. When the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?
The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.
And Gorsuch would also apply this rule retroactively to statutes drafted long before the Court’s decision in Gundy — an approach with profound implications for the West Virginia case. The section of the Clean Air Act at issue in West Virginia was enacted in 1970.
Perhaps, if the Nixon-era Congress had known it needed to write that law with greater precision, it might have drafted it in a way that Gorsuch would deem acceptable (although it is unclear whether judges like Gorsuch would deem any meaningful environmental protection regime acceptable). But it’s simply unreasonable to expect lawmakers in 1970 to comply with a rule announced by a dissenting justice in 2019.
Gorsuch’s approach to nondelegation, in other words, wouldn’t simply strip Congress of much of its power to delegate authority to agencies. It would allow the most conservative panel of justices to sit on the Supreme Court since the early days of the Franklin Roosevelt administration to run roughshod through decades of federal statutes, invalidating or severely weakening hundreds of provisions drafted at a time when the nondelegation doctrine was widely viewed as a crankish notion that was correctly abandoned in the 1930s.
West Virginia contains the seeds of a constitutional revolution. It could, as Roosevelt warned in 1937, enable the Supreme Court to “make our democracy impotent.”
A more moderate approach that still isn’t especially moderate
In 2016, when Obama was still president and Kavanaugh was still a lower court judge, the DC Circuit Court heard another case involving the Clean Power Plan, which was also known as West Virginia v. EPA. At the time, Gorsuch was also still a lower court judge, and the nondelegation doctrine was still just a reactionary idea touted at Federalist Society conferences.
And yet, then-Judge Kavanaugh also suggested at oral arguments in this first West Virginia case that the Clean Power Plan must fall. He rested his arguments largely on something known as the major questions doctrine.
This doctrine derives from the Supreme Court’s decision in FDA v. Brown & Williamson Tobacco (2000). Although federal law gives the FDA broad authority to regulate drugs and devices used to deliver drugs, a 5-4 Court concluded in Brown & Williamson that this power does not extend to tobacco.
Though courts should typically defer to an agency’s regulatory decisions, Brown & Williamson concluded that “in extraordinary cases … there may be reason to hesitate before concluding that Congress has intended” to delegate authority to a federal agency. In asserting the power to regulate tobacco, the Court claimed, “the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy.” Congress, moreover, had previously “rejected proposals to give the FDA jurisdiction over tobacco.”
So, in light of that history, the Court determined that the federal law permitting the FDA to regulate drugs should not be read so broadly as to allow it to target nicotine.
Although Brown & Williamson placed a great deal of emphasis on the fact that Congress had rejected prior efforts to allow the FDA to regulate tobacco, the Court expanded the major questions doctrine in Utility Air Regulatory Group v. EPA (2014). Under Utility Air, any significant regulation pushed out by an agency is potentially suspect, regardless of whether Congress had given some outward sign that it disapproved of that regulation.
“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,’” Scalia wrote for the Court in Utility Air. The Court, in other words, imposed a new restriction on Congress. It could delegate broad powers to agencies, but any statute that did so had to be written with an unspecified amount of precision. And courts were free to invalidate regulations if they deemed the statute authorizing that regulation to be insufficiently precise.
The major questions doctrine is, in some ways, weaker than the nondelegation doctrine. For one thing, it doesn’t purport to be a constitutional doctrine. Because nondelegation claims that there are constitutional limits on Congress’s ability to delegate power, it is likely that justices loyal to this doctrine would declare some delegations invalid no matter how carefully Congress drafted a law. The major questions doctrine, by contrast, theoretically can be overcome by precise draftsmanship.
After Brown & Williamson was decided, for example, Congress enacted the Family Smoking Prevention and Tobacco Control Act of 2009, which explicitly gave the FDA the power that the Court denied it in 2000. At least so far, the Court has permitted the FDA to regulate tobacco under this statute.
But the major questions doctrine also suffers from many of the same problems as nondelegation. It is vague, so judges can easily read their policy preferences into decisions challenging agency regulations. And it changed the rules governing statutory drafting long after many important laws were enacted.
Again, if Congress had known, in 1970, that it had to draft the Clean Air Act in a certain way to prevent the Supreme Court from dismantling the EPA’s powers, it could have done so. It’s simply not reasonable to expect Congress to comply with a rule of statutory construction invented decades after Congress enacts a law.
Doctrines like nondelegation and major questions, in other words, threaten to retroactively undo decades of legislation. And, while these doctrines might hypothetically permit Congress to restore at least some old laws by enacting new versions that comply with the new rules, the filibuster all but ensures that no bill will become law.
Now, the Supreme Court appears likely to wield these doctrines to invalidate key provisions of the Clean Air Act. That means the federal government may soon have to fight climate change with both hands tied behind its back. And, if the Court does invigorate these doctrines, countless other laws could be next on the chopping block.