- The Washington Times - Thursday, June 30, 2022

The Environmental Protection Agency lacks the power under current laws to impose stark greenhouse gas emissions caps on the nation’s electricity supply, the Supreme Court ruled Thursday, erecting a major roadblock in President Biden’s path to impose climate change policies.

The case before the justices dated to 2015, when President Obama, frustrated by his inability to win climate change legislation from Congress, had the EPA step in with newly discovered authority to force states to cut emissions from power plants.

Chief Justice John G. Roberts Jr., writing the majority opinion in the 6-3 decision, said Congress tasked the EPA with forcing plants to operate more cleanly but never envisioned the kind of cap-and-trade system the Obama team imposed to pressure emissions-heavy coal plants to close.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Chief Justice Roberts wrote in a ruling joined by the court’s other Republican-appointed members.

The decision doesn’t mean Congress can’t grant that power, but only that it has not done so.

Mr. Biden called the ruling “devastating” but vowed to find ways to move forward with his climate plans.

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“The science confirms what we all see with our own eyes — the wildfires, droughts, extreme heat, and intense storms are endangering our lives and livelihoods,” he said in a statement. “I will take action.”

The ruling marks a significant limit to executive powers a decade after presidents started to test those boundaries.

Mr. Obama, frustrated with Congress, famously vowed to use his pen and phone to work around Congress. President Trump and now Mr. Biden have flexed executive authority to try to accomplish goals that were stymied by lack of legislation.

Justice Neil M. Gorsuch, writing a concurring opinion, shot down that approach.

“When Congress seems slow to solve problems, it may be only natural that those in the executive branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives,” he said.

Chief Justice Roberts said that when agencies confront “major questions,” courts should take extra care to ensure the administration stays within its legal lanes. With other cases, the high court has granted significant deference to agencies in interpreting the law.

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Justice Elena Kagan, writing in dissent, said her colleagues ducked a chance to tackle “the most pressing environmental challenge of our time.”

“If the current rate of emissions continues, children born this year could live to see parts of the Eastern Seaboard swallowed by the ocean,” she wrote in an opinion joined by Justices Stephen G. Breyer and Sonia Sotomayor.

Power plants make up the second-largest source of greenhouse gas emissions in the U.S. behind transportation, according to the EPA. The U.S. is the second-biggest emitter, behind China, of greenhouse gases that contribute to climate change.

Justice Kagan said the relevant law granted the EPA the power to choose the “best system of emission reduction,” and that was what the EPA said it did with the cap-and-trade scheme.

“The limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote,” she concluded.

More broadly, she said, by laying out rules for how agencies grapple with major questions, the court made it tougher for future administrations to act on any number of issues.

“The court has never even used the term ‘major questions doctrine’ before,” Justice Kagan wrote.

The justices in the majority said the high court has applied the doctrine before, by finding that “extravagant” or “extraordinary” claims of executive power deserve extra scrutiny.

The case, West Virginia v. EPA, came to the high court after years of legal wrangling in lower courts and among administrations.

The Obama team announced its Clean Power Plan in 2015. The Supreme Court blocked it in 2016 without ruling on its legality. While the plan’s lawfulness was being challenged in the courts, the Trump administration repealed it on grounds that it exceeded the EPA’s authority. The Biden administration has sought to revoke the Trump repeal and promised its own climate regulations.

The Clean Power Plan was crafted to reduce emissions by penalizing energy derived from coal, a relatively dirty source of greenhouse gas emissions.

The plan aimed to cut coal from 38% of the nation’s energy source in 2014 to 27% by 2030.

Those projections were never tested because courts blocked the implementation of the guidelines.

West Virginia Attorney General Patrick Morrisey, who led the 19 states, companies and industry groups challenging the EPA, said the ruling allows Congress to decide environmental issues.

“This is about maintaining the separation of powers, not climate change. Today, the court made the correct decision to rein in the EPA, an unelected bureaucracy,” he said.

Yaakov M. Roth, a partner at Jones Day who represented North American Coal in the litigation, called the ruling an “important step toward political accountability and economic certainty.”

“This decision properly keeps the EPA in its lane and rejects the agency’s efforts to usurp national energy policy from Congress,” he said.

Democrats cast the decision as the latest blow to their goals, delivered by a Supreme Court that they say is tainted by conservative bias.

“The Republican-appointed majority of the MAGA Court is pushing the country back to a time when robber barons and corporate elites have complete power and average citizens have no say,” said Senate Majority Leader Charles E. Schumer, New York Democrat.

He said the ruling would “cause more needless deaths” because of pollution. He pledged to take up the court’s invitation and push for legislation in Congress.

Kat Maier, a national coordinator of the youth-led climate action group Fridays for Future, said advocates should turn to the local and state levels of government.

“This is going to make it all the more important to organize locally, put pressure on any kinds of regulatory bodies that are local and state because the only other kind of way there can be climate action now is through President Biden,” Ms. Maier said.

Environmental activists say Mr. Biden still has room to take bold action, such as declaring a climate emergency and invoking the Defense Production Act to force an energy transition.

“All of those are things he can still do, but he’s not doing any of them,” Ms. Maier said. “There’s no way that we can actually rely on him pulling through.”

Mr. Biden, in his statement, promised action. He said he has asked his team “to review this decision carefully and find ways that we can, under federal law, continue protecting Americans from harmful pollution, including pollution that causes climate change.”

He said the Supreme Court ruling “sides with special interests that have waged a long-term campaign to strip away our right to breathe clean air.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

• Ramsey Touchberry can be reached at rtouchberry@washingtontimes.com.

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