The American Supreme Court has been on something of a run of polarizing precedents of late, hasn’t it? First, it tossed aside some 50 years of perfectly sensible fertility rights barely a day after it had ruled, almost as egregiously, that Americans can carry a concealed weapon without a license. By the staid standards of jurisprudence, it was a blockbuster week.
Not surprisingly, lost in all these headline-generating decisions was another that passed largely unnoticed. So, while the rescinding of Roe v. Wade continues to resonate just as loudly more than two months later, none but the most diehard of environmentalists even took notice of something called West Virginia v. Environmental Protection Agency.
That’s because West Virginia v. EPA deals with arcane laws that regulate the noxious fumes coal-fired electricity plants spew — laws that may soon become largely irrelevant anyway. Renewables are quickly pricing coal out of business so, even though this recent relaxation of emissions standards leaves coal a little less regulated, as an important energy source, it will be gone soon enough. In other words, as bad as coal-plant emissions might be, this particular Supreme Court decision probably doesn’t matter all that much.
But the reason behind the justices’ decision, well, that, my friends, might matter a whole heck of a lot, especially if you believe that the climate-changing greenhouse gases automobiles emit need regulating. That’s because West Virginia v. EPA posits that the Environmental Protection Agency has, over the years, taken upon itself to assert greater authority over its charges. In the case of these coal-fired electricity plants, it tried to enact industry-changing emissions regulations — in this case, the coal community said the EPA was trying to put them out of business — without direct congressional approval.
Un-uh, said the highest court in the land, you can’t do that. In a new twist on an old legal theory — and one finding traction among the ultra-conservative — SCOTUS said that all such industry-changing decisions must wait on specific direction from Congress, only elected representatives having the power to impart protocols that might affect businesses’ livelihoods. No matter how sensible the solution, “agencies have only those powers given to them by Congress,” wrote Chief Justice John Roberts in his majority opinion. “It is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.” Simply put, the EPA’s aggressive cuts to coal plant emissions was beyond its authority. This theory that governmental agencies can only act at the behest of Congress even has a name — the major questions doctrine. I’d ask that you remember it and its meaning. I promise it will become very important in just a couple more paragraphs.
That’s because of another Supreme Court ruling, this one an older case called Massachusetts v. Environmental Protection Agency. Unlike West Virginia, it’s a doozy, essentially the ruling that mandated that the EPA had to regulate automotive CO2 emissions.
In this October 13, 2015, file photo, a Volkswagen Touareg diesel is tested in the Environmental Protection Agency’s cold temperature test facility in Ann Arbor, Michigan Getty
Yes, “had to.” Like many, even those of us in the biz, I had thought that the EPA had to fight for the right to regulate greenhouse gasses. In fact, it’s the opposite: Clean-air activists had to sue the EPA to force them to put a cap on tailpipe CO2 emissions.
More important, at least for today’s discussion, is how Massachusetts v. EPA creates that mandate. According to insideclimatenews.org, the EPA’s right to regulate tailpipe emissions stems from the Clean Air Act, which gives it the right to limit the “pollutants” that internal-combustion engines create. So, rather than create a new statute that specified the agency must regulate carbon dioxide, Massachusetts v. EPA took the more expedient route of simply defining CO2 as a pollutant, something that, by insideclimatenews.org’s reckoning, “Congress had never foreseen when it passed the statute in 1970.” As author Sam Evans-Brown virtually foretold in a 2000 article, a rulings reversal by some future Supreme Court could make including CO2 on the list of pollutants the EPA should regulate a “workaround” at best.
There are those that think that workaround will hold. David Bookbinder, who worked on the original Massachusetts brief and now is chief counsel at the Niskanen Center, told E&E News that Massachusetts v. EPA is “slowly becoming insulated as precedent.” Nonetheless, that broadening of the definition of “pollutant” is open to attack. Some 0.03 per cent of our atmosphere has always been comprised of CO2, its natural sources, such as outgassing from the ocean, decomposing vegetation, venting volcanoes, naturally occurring wildfires, and even belches from ruminant animals, long predating mankind.
It is only, in fact, in the last hundred years or so that, as its presence in our air increased past 300 parts per million — it now sits at 414.72 ppm, says climate.gov — that it’s become actually harmful. In other words, while an excess of carbon dioxide may well very be deemed pollution, it may not be, in and of itself, a pollutant. If you’re following along, that means that, like the recently repealed right to abortion — you do know the original Roe v. Wade ruling that allowed abortion was pretty flakey right from the get-go, right? — the EPA’s right to regulate greenhouse gasses might not be based on the firmest of legal logic.
Smoke from a coal power plant’s chimneys Photo by Getty
And that’s not the worst of it. Remember when I asked you to keep the doctrine of major questions — again, the concept that governmental regulatory agencies must wait on the will of Congress before rendering industry-altering regulations — fresh in your synapses? Well, the reason I made the request is that, back when Massachusetts v. EPA was being adjudicated, the EPA’s reasoning for not wanting to regulate CO2 was simple: When that Clean Air Act was passed in 1970, Congress focused all its concern on smog-inducing pollutants such as hydrocarbons and nitrogen oxides. Greenhouse gasses and their potential effect on climate change were not, in fact, ever mentioned in the statute. As a result, the EPA took the position that, because Congress had not specifically intended the Clean Air Act to regulate CO2 when it was originally passed, the agency could not, in and of itself, make the decision to regulate greenhouse gases without new direction from Congress.
Yes, you’re reading that right: the very reason the EPA has had to regulate CO2 since 2007 can be chalked up to the behaviour the current Supreme Court is trying to eradicate from all governmental agencies. More ominously, according to Oyez.org, Justice Antonin Scalia’s minority dissent way back in 2007 focused specifically on the major decisions doctrine that troubles today’s Supreme Court so much, stating quite clearly “that the Clean Air Act was intended to combat conventional lower-atmosphere pollutants and not global climate change.” Kinda makes you wanna read the fine print, right?
But what to make of all this legal jargon?
Like the recently repealed right to abortion, the EPA’s right to regulate greenhouse gasses might not be based on the firmest of legal logic
Well, the first thing I learned is that legalese really is barely more decipherable than Russian Cyrillic is to an English speaker. Nonetheless, assuming I do have some grasp of the jurisprudence, there are three key takeaways from all this lawyerly hocus-pocus. The first is that, as much it might be fashionable to lay this all at the feet of the Supremes, there’s plenty of blame to go around. Voters, politicians, and both political parties have all had eons — for abortion rights, almost 50 years; in the case of Massachusetts v. EPA, 15 — to codify them into unimpeachable law. Blame Trump’s three appointees all you like, but, to paraphrase the most famous three words in the American constitution, we the people are to blame.
The second is a question, that of whether the recently enacted Inflation Reduction Act — a climate-change bill, by the way, even if it is labelled as “inflation-fighting” to shore up public support — will be effective in stopping the Republican effort to dismantle the EPA’s authority. A few legal scholars have opined that it could. However, it does not rewrite the Clean Air Act’s definition of a pollutant.
The final lesson from all of this?
The Supreme Court of the United States in Washington, D.C. Photo by Getty
Be afraid. Be very afraid. We have a Supreme Court with two members — Thomas and Roberts — who voted against the original decision to force the EPA to regulate automotive greenhouse gas emissions. Trump’s Three Stooges, meanwhile, would seem ready to accede to pretty much anything the Republican party puts before them. More importantly, the Republican majority would seem to think that all government agencies should act only on the very specific direction of Congress. And, to top it all off, if Dobbs (Roe v. Wade) is any indication, they have scant respect for precedent.
In the end, I have absolutely no idea whether any Supreme Court challenge to Massachusetts v. EPA would be successful. But I am pretty sure that someone is going to try.
Author’s note: As I said, it’s impossible to know what the consequence of all these legal meanderings might be. After all, who among us would have predicted that the banning of abortion would actually turn voters against the GOP?
What I do know is that, shortly after I finished writing this piece, California announced it was banning the sale of internal-combustion engines after 2035. More importantly, depending on your source, estimates suggest that as few as four but as many as 15 other states will follow in the Golden State’s lead. That could, again depending on your sources, result in as much as 40 per cent of the American automobile-consuming public living in states where they are strictly forbidden from buying an ICE-powered vehicle, while the other 60 per cent would have absolutely no federal standards regulating automotive CO2 tailpipe emissions at all.
Does that dichotomy sound familiar? If Texas threatens to stop California-plated BEVs at its border — so they don’t overwhelm their pathetic power grid! — then the parallels with Roe v. Wade would be complete.