As we celebrated Independence Day last week, it’s been noted that a number of us haven’t been feeling very celebratory. Between Trump’s rather obvious attempt to steal the election — and that there are still far too many Republicans believing in the big lie — and the Supreme Court’s hijacking of the domestic political agenda, there are plenty of reasons to be worried for our democracy.

The worst decision from the Supreme Court was, of course, Dobbs v. Jackson Women’s Health Organization. The second worst decision was West Virginia v. Environmental Protection Agency. Why this decision is so terrible is much harder to explain. But I will give it a try.

First of all, this was an attack on the “administrative state,” which conservatives and libertarians have loved to hate for a long, long time. In their view the administrative bureaucracy is an unelected, rogue entity that is dead set on curtailing legitimate business practices. To be fair, federal (and also state) regulation is a decidedly mixed bag.

Has there ever been regulatory overreach?

Of course. Quite a few times.

But regulation is also indispensable for a modern, technologically complex society such as the one we’re living in. 

After all, regulations are promulgated by federal agencies subject to specific authority from Congress. Without Congressional authority, no regulations. It’s as simple as that.

Also, federal regulation is subordinate to federal statutes. Where there is a conflict, the federal statutes will govern.

Details of the Case

This was a challenge by West Virginia and certain other Republican states to the Obama administration’s “Clean Power Plan.” Each state was assigned an individual goal for reducing carbon emissions, which could be accomplished how they saw fit, but with the possibility of the EPA stepping in if the state refused to submit a plan.  The EPA divided the country into three regions based on connected regional electricity grids to determine what a state’s goal should be. The focus was on three building blocks: increasing the generation efficiency of existing fossil fuel plants, substituting lower carbon dioxide emitting natural gas generation for coal powered generation, and substituting generation from new zero carbon dioxide emitting renewable sources for fossil fuel powered generation. These provisions were enacted under the authority of the Clean Air Act, as codified in 42 U.S. Code §7411.

If every state met its target, the plan was projected to reduce carbon emissions from electricity generation 32% by 2030, relative to 2005 levels, as well as achieving various health benefits due to reduced air pollution.

In 2017, Donald Trump withdrew the United States from the Paris Agreement, and announced the formal process to repeal the Clean Power Plan. In its place his administration proposed the Affordable Clean Energy Rule, which established emission guidelines for states to use when developing plans to limit carbon dioxide at their coal-fired electric generating units, but did not include the submission of federal plans if the state’s failed to comply.

All of that was essentially thrown out when Trump lost the election, and Biden has not yet introduced a new power plan. So, for all practical purposes, the issue is moot. But Justice Roberts — who went out of his way that he would not have overturned Roe in the Dobbs case because it was unnecessary to rule on the constitutionality of the Mississippi statute in question — decided, with the endorsement of his conservative colleagues — to rule on the question anyway.

Because he didn’t have to rule, Roberts spent pages and pages defending the court’s decision to rule on this now. “Unless it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur” Roberts claimed, the court could decide the case. But that is not actually the standard for a live controversy. 

In effect, the court wanted to rule because they wanted the result.

Most significantly, Roberts took the opportunity to announce something called the “major questions” doctrine, which requires an agency to point to “clear congressional authorization” for the authority that it claims. While that may sound reasonable on its face, the practical effect is that when Congress gives an agency a broad grant of authority, it will now have to go back and add specific directives to deal with emerging technologies or emerging issues.

The Practical Effect

This might not be a problem with a functional Congress, but with today’s dysfunctional Congress — a dysfunction driven almost entirely by today’s Machiavellian GOP — that is really going to be a problem.

Paraphrasing from Justice Kagan’s dissent the reason that agencies promulgate regulations is (1) because they have more expertise in the particulars than Congress; (2) because Congress cannot continually respond to changes in technology; (3) because Congress can reign in any agency regulation that they think has gone too far, and (4) because Congress has the authority to choose to delegate whatever it wants to the Executive branch.

Now, instead of simply having to address the question of whether an agency regulation is within an agency’s general grant of authority, courts will have to address an additional question whether the regulation concerns a “major question” and requires an additional specific authorization from Congress.

And don’t kid yourself about the intent here: the intent is to hamstring the Biden administration — before it’s even had the chance to promulgate any rules — from doing anything too dramatic on carbon emissions, thereby preventing them from meeting the commitments they’ve made to the international community on global warming.