/ Articles / Thoughts From Engineers: The Supreme Court Kicks the Climate ‘Ball’ Back to Congress

Thoughts From Engineers: The Supreme Court Kicks the Climate ‘Ball’ Back to Congress

Chris Maeder on July 29, 2022 - in Articles, Column

Many predicted in the days leading up to the release of the Supreme Court of the United States (SCOTUS) decision in West Virginia v. EPA that something “big” was about to happen. In any other decade, I think the decision would’ve been characterized as “business as usual,” but times are different now. In this particularly tense political climate, stakes are high. The ramifications of this SCOTUS decision in late June 2022 have been widely discussed, and much more analysis will undoubtedly be forthcoming. We’re only just getting started.

SCOTUS Claims EPA Steps Outside the Scope of Authority

In a nutshell, the majority opinion, written by Chief Justice Roberts, held that an Obama-era “Clean Power Plan” developed by the Environmental Protection Agency (EPA), which included “generation-shifting” measures to reduce carbon emissions, was in effect a regulatory strategy well beyond the scope of authority delegated through the Clean Air Act (CAA).

The Court used something called the “major question doctrine” as a basis for invalidating the plan. In other words, although the CAA gives the EPA a set of tools it can use to control emissions from polluting sources, none of those tools includes requiring the regulated entity to switch to alternative sources of energy altogether. According to the majority opinion, this type of regulation represents a major policy change with significant costs and economy-wide repercussions. The minority opinion focused on the fact that like the “cap and trade” emission system upheld by SCOTUS several years ago, this was simply another “system” to manage emissions and was entirely within the scope of EPA authority.

Opinions on the ruling range from those who applaud SCOTUS’ reining in of the “out of control” administrative state, here represented by the EPA, to those claiming that SCOTUS should have interpreted the EPA’s statutory authority broadly. Administrative agencies are staffed with experts, so the argument goes, so why not give experts the freedom to carry out the law’s mission consistent with the latest science, so long as the underlying purpose of the law as identified by Congress is upheld?

Less Than a Well-Oiled Machine

Arguably, environmental advocates would not see this case as such a pivotal turning point if all branches of government “worked” as current times require. And some members of Congress would probably agree that many run-of-the-mill lawmaking processes already are muddled. The word “dysfunctional” is tossed about a lot—due to partisan politics, interpersonal conflicts and what have you. In years past, you could count on Congress to reliably revisit the CAA and modify it to address some of the ambiguities identified by SCOTUS in West Virginia v. EPA. But “reliability” is the operative word here.

For a variety of reasons, which include the influence of special interests in Congress in addition to the other factors listed above, a clarification of the CAA’s ambiguities in the way Roberts envisioned is unlikely to happen. As one analyst recently pointed out, the CAA has been untouched by Congress for approximately 50 years. In the 1970s and 1980s, Congress was in its heyday in terms of passing environmental legislation and amending that same legislation if necessary. We now are in a period of gridlock and inactivity. Moreover, if Congress doesn’t provide additional clarification and chart some path forward (preferably away from fossil fuels), agencies are left to putter along with out-of-date tools. We all are then simply treading water as major environmental issues continue to gather speed.

Although I’m not optimistic about the long-term implications of this case, I actually agree that the scope and language of the CAA should be clarified and brought up to date to expressly and firmly integrate a renewables policy into the mix. This would give the EPA a clear directive to implement the law with a confident hand, robust regulations and a congressionally validated path forward.

Can Congress be prodded to revisit the law, update it to incorporate the latest on climate science and give the EPA a set of updated tools? In view of the hold certain industries (petrochemical and others) have on Congressional representatives, I’m not sure the CAA or other environmental laws will be seriously tackled any time in the near future. Just last session, legislation that would have addressed the matter of plastics in the world’s seas was killed soundly and decisively. According to one government source, these sectors funnel on the order of tens of millions of dollars of lobbying each year toward Congress. Members of both parties are invariably affected, one way or another, by special interests that can cloud the judgment of politicians. This isn’t the only reason we’re unlikely to see a Congressional shift, but it’s an important one.

Are Private Interests Poised to Spring?

As things now stand, much like a predator senses a crippled prey, SCOTUS inadvertently opened the door to challenge from any and all interest groups with financial stakes in environmental regulations. The EPA’s detractors will interpret delegated authority narrowly, and unless a statute includes significant detail—unlikely in view of the technical character of environmental laws—legitimate administrative authority will be considered suspect and questioned. Tough days are ahead for the EPA.

Now as we exit an era in which agency expertise enjoyed substantial deference, powerful private interests line up to thwart regulations designed to protect the public’s interest in clean air and water. Columnist George Will commented that SCOTUS’ opinion in West Virginia v. EPA “would limit the excessive autonomy currently enjoyed by the executive agencies that are the increasingly autonomous, unleashed and unaccountable administrative state.” In view of the myriad troubles plaguing Congress right now, I don’t think all members are necessarily “accountable” in that legislative body either.

But I’m willing to bet that in spite of the current divisiveness, irregularities and other hang-ups, the United States—and its respective branches of government—will muddle through somehow. This great nation somehow always does. 

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About Chris Maeder

Chris Maeder, P.E., M.S., CFM, is engineering director at CivilGEO Inc.; email: [email protected].

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