By Lynn Capuano

In a decision released June 30, the Supreme Court curbed the Environmental Protection Agency’s ability to address climate change by regulating carbon emissions from power plants. Essentially, the court held that Congress did not specifically authorize EPA to issue such a regulation.

The court’s opinion introduced a new basis for review of federal agency regulation based on the “major questions doctrine.” The doctrine asserts that an agency may not take any action, such as implementing a regulation, that will have major national significance without clear statutory authorization from Congress. The majority opinion in this case, written by Justice Roberts, stated Congress did not authorize the EPA to use the Clean Air Act to regulate carbon emissions from power plants the way EPA had. He wrote, “[a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

The decision is the first time a majority opinion explicitly cited the so-called “major questions doctrine” to justify a ruling.

What gave rise to this case began in the Obama administration when EPA issued the regulation known as the Clean Power Plan under the Clean Air Act. The CPP set carbon emissions guidelines for power plants based on the best emission controls demonstrated to work. This approach was called a beyond the fence line of the power plant approach to emissions control. The Trump administration abandoned the CPP and issued a regulation using an inside the fence line approach, which gave the power plants more flexibility and less stringent emissions controls. They had to control their emissions based only on what the individual power plants could achieve with equipment and technology available on site.

This rule was also abandoned and presently there is no rule regarding carbon emissions standards from power plants. Yet the Supreme Court agreed to hear a challenge brought by West Virginia against the EPA challenging EPA’s authority to issue a regulation implementing beyond the fence line emission control measures – those based on what is currently demonstrated to be the best controls available. West Virginia argued this was a violation of the “major questions doctrine” because Congress did not specifically authorize EPA to issue such a regulation.

According to Shaun Goho, a lecturer on law and acting director and senior staff attorney of the Emmett Environmental Law and Policy Clinic, “Supporters of the major questions doctrine would characterize this as taking power away from agencies and giving it to Congress, because they would say Congress is democratically accountable, and therefore should be making the major policy decisions. Critics would say, ‘No, what’s happening is you’re taking power away from agencies, which have some degree of democratic accountability to the president, and you are actually granting the power to the courts, which are not democratically accountable at all.’”

Regardless of one’s view of the “major question doctrine,” it is clear that this decision has opened the door for a wide array of federal agency regulations to be challenged on the basis that Congress did not specifically authorize the agency to take whatever action is outlined by the regulation.

There is no aspect of our lives that isn’t controlled by regulation. What we eat, the quality of our air and water, the medications we can access, how our vehicles operate, the toys we can give to our children, the cleaning products we can use and on and on are all regulated by the federal government. All of those regulations are now potentially subject to challenge because of this decision.

Justice Elena Kagan, writing for the dissenters, sounded the alarm about global warming and said that the court’s decision “strips” the EPA of the “power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’ The court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy,” she wrote. “I cannot think of many things more frightening,” she concluded.

Others commenting on the opinion have focused on the ruling’s impact on American’s health. Without carbon emissions controls, there will be increases in asthma, lung cancer, and other diseases associated with poor air quality. Those repercussions will have the most impact on already heavily polluted neighborhoods.

Congress now is the only federal body able to act in the face of the very real consequences of climate change. Without immediate and significant action, we will assuredly surpass the 1.5 degree Celsius warming all experts set as the limit of what human beings can reasonably endure while maintaining some semblance of existing Western standards of living.

However, even that increase in overall global temperature, which we will achieve in the early 2030s, will leave substantial portions of currently inhabited land uninhabitable. Reaching a 2 degree Celsius increase by mid-century could render the entire planet uninhabitable and certainly life as we know it impossible. The unfortunate truth is we are on course to exceed even that 2 degree Celsius increase.

Current congressional efforts to address climate change are woefully inadequate. The current emissions reduction programs in discussion do not do enough and there are no plans to draw down already released greenhouse gases, a critical step in staying below the 1.5-2 degree Celsius mark.

Congress must act to address fossil fuels in the power sector. Electricity generation contributes 25% of the greenhouse gas emissions around the globe and in the U.S. Coal, the dirtiest fossil fuel, is the source of 20% of U.S. electricity. Greenhouse gas emissions from power production rose last year, for the first time since 2014, mainly driven by coal use. Only transportation is a larger source of pollution in the U.S. And only China produces more greenhouse gases than the U.S. These are not results to be proud of.

The EPA’s regulation would have capped carbon emissions so as to force a transition away from coal. Since the agency’s hands have been tied by the Supreme Court, we must demand Congress act and provide clear authority to EPA to address climate change. Contact your representatives and senators and let them know you support taking action on climate change and your vote is tied to them taking legislative action.