365 Days of Climate Awareness 324 – W. Virginia v. the EPA

Is this how our republic dies, at the hands of six supremely unqualified sophists? Their recent opinions are judicial masturbations with no pretense of consistency beyond might-makes-right. Alternately ignoring the text of the Constitution—Amendment 9, in the Obergefell abortion case—or inventing arbitrary distinctions within it—the “Major Questions Doctrine” of the W. Virginia case—they are shaping law by any convenient means toward their premeditated goals. While the verdict in W. Virginia is not, to my mind, quite the death knell for society it’s portrayed as, it is a gunshot to the stomach, one that will lead slowly and painfully to death if not treated right away.

 At issue is the Clean Power Plan proposed by the Obama administration in 2015, to lower carbon emissions for electricity generation by 32% from 2005 levels by 2030. For its authority, the administration classified carbon dioxide as a pollutant subject to regulation under the Clean Air Act. 28 states opposed the plan and many went to court. There were three lines of attack: (1) there remain unreconciled differences between the House and Senate bills which were signed into law, leaving room for interpretation on the EPA’s jurisdiction over carbon dioxide; (2) the CPP authorized states to act on classes of power plants, not individual power plants as before—i.e., the CPP gave states governments too much power; (3) that under the 10^th Amendment, the EPA lacks the power to delegate that much authority to states.

West Virginia along with nineteen other states challenged a 2021 appellate court’s decision in favor of the rule. The EPA then moved to declare the suit moot on the premise that the Clean Power Plan had been shelved. But the Roberts court agreed to hear it, on the premise that future climate action by the EPA was too likely to ignore. On June 30, 2022 the Roberts court issued its opinion, based on a never-before-named “Major Questions Doctrine”.

The line of thinking has existed for some time, and has been applied in several cases through the decades, limiting federal agencies from overly broad interpretations of vaguely-worded laws. In employing this new doctrine, the Supreme Court shied away from what many feared was at stake, Congress’ right to delegate any regulatory authority whatsoever (which would have rendered all federal agencies in the Executive branch illegal). Previous applications of the principle—not yet elevated to the status of constitutional “doctrine”—include preventing federal drug laws from being applied to drug-assisted medical suicide. While previous Courts have ruled against executive agencies aggressively interpreting environmental laws, the Major Questions Doctrine is so dangerous because there is no clear standard for its application.

At issue is whether an executive agency can be guided by changes in conditions and in the state of knowledge, or whether there is some boundary—presumably between “minor” and “major” questions—at which Congress must intervene. The science of global warming, notwithstanding ExxonMobil’s and the rest of the oil industry’s concerted disinformation campaigns—has been established for over thirty years.

The Roberts decision invalidates the CPP, holding that Congress must re-delegate specific authority on greenhouse gas emissions to the EPA. With this ruling the Roberts court has taken away all power of the EPA to take any action on carbon dioxide or other greenhouse gas emissions, except as they are accidentally included by name in the law already. Given Republican obstruction of Congress, that remains impossible in the near future. Combined with their other decisions on voting rights and other issues, it summons the specter of no action ever being taken at the federal level on climate change.

You can be sure that that the “Major Questions Doctrine” was very thoroughly prepared within the Heritage Foundation before being passed along to and advanced by this court, as the easiest line of attack on environmental and other forms of regulation. More suits citing it are without doubt already being drawn up. By focusing on dubious legalistic hair-splitting, and treating the larger issue with ignorance and contempt, the Roberts court has once again acted decisively on behalf of corporate interests over the welfare of the United States, its citizens, and the world.

Tomorrow: running a climate model.

Be brave, be steadfast, and be well.