By Thomas Neuburger
As we wrote recently, the Supreme Court, in its National Federation of Independent Business v. OSHA decision, not only limited OSHA's ability to issue workplace mask and vaccine mandates, it also questioned the existence of the regulatory state itself (see "Dismantling the American Regulatory State").
Near the end of February, the Supreme Court will give itself another opportunity to weigh in, narrowly or broadly, on federal regulation when it decides whether to overturn its decision in Massachusetts v. EPA, a ruling that affirmed Congress's ability to instruct the EPA to regulate CO2 as an air pollutant.
Meteor Blades (Tim Lange) writing at Daily Kos gives us a heads-up:
Supreme Court case could eviscerate EPA’s (and other agencies’) regulatory authority
Fifteen years ago, by 5-4, the Supreme Court ruled in Massachusetts v. EPA that carbon dioxide greenhouse gases qualify as air pollutants under the Clean Air Act, and as such, the agency had to either issue a rule declaring them a threat to public health and welfare—which would catalyze steps toward regulatory controls—or explain why they shouldn’t be considered pollutants. The EPA did ultimately label greenhouse gases dangerous and has since implemented numerous rules restricting them, with much pushback and litigation in opposition.
Quite a different Supreme Court majority sits on the bench today than back then, with right-wingers on board who certainly would never have ruled the same way in 2007.
Next month the court will hear oral arguments in the case of West Virginia v. EPA. Their ruling could sound the death knell for the Massachusetts v. EPA decision. The case the Supremes will take up in oral arguments on Feb. 28 is actually four combined cases. The question the justices have chosen to answer is whether the Constitution allows for Congress to delegate broad regulatory authority to the EPA to regulate greenhouse gases. But the majority might make a decision that goes much further than that.
How much further could the Court go? A piece at TPM quotes Jonathan Adler, of the Burke Center for Environmental Law at Case Western Reserve, as saying: “There is a significant likelihood that how the Court handles this case will affect how much leeway agencies have to interpret authority statutes going forward.”
How Many Right Wing Justices Are Likely to Support Reversing Massachusetts v. EPA?
The Supreme Court web page for West Virginia v. EPA is here. Certainly the future of climate change-related regulation is at stake in this case, and (in my opinion) that regulation will most likely be curtailed, if not ended entirely.
In the OSHA case mentioned above, three anti-regulation justices (Gorsuch, Thomas, Alito) were cosigners to Gorsuch's full-throated rejection of Congress's ability to delegate its regulatory power (detail here).
Justice Roberts has also questioned congressional regulatory delegation. In a separate case, he wrote, "An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency." (emphasis added)
Justice Coney Barrett (Notre Dame's gift to the nation) is, among many other flaws, not friend of climate action. At her confirmation hearing she refused to say if climate change is happening. She thinks of the climate discussion as "a very contentious matter of public debate," and therefore, though she's careful not to admit this, not settled science.
It's almost icing on the Coney Barrett cake to note that she has family ties to Big Oil.
Justice Kavanaugh is also no fan of broad regulatory authority. In discussing Kavanaugh's potential views on Massachusetts v. EPA in 2018 (how prescient), the right-wing Cato institute wrote, "Brett Kavanaugh clearly prefers Congressional statutes to agency fiat. Assuming that he is confirmed, he will surely exert his presence and preferences on the Court, including that global warming is 'urgent and important,' but it is the job of Congress to define the regulatory statutes."
Charles Pierce, writing in Esquire, agrees.
"In Mexichem Fluor v. Environmental Protection Agency, [Kavanaugh] struck down a regulation that would limit the amount of hydrofluorocarbons (HFCs) that manufacturers can use. EPA had issued the regulation because HFCs contributed to climate change, but Kavanaugh ruled that the Clean Air Act did not explicitly grant the EPA the power to regulate HFCs. In EME Homer City Generation, L.P. v. Environmental Protection Agency, Kavanaugh held that an EPA rule setting forth a cooperative effort between states and the federal government to limit pollution from upwind states was in excess of the agency’s authority under the Clean Air Act. The Supreme Court later reversed Kavanaugh’s decision in a 6-2 vote, indicating just how far outside of the mainstream his decision was." [emphasis added]
If the EPA, according to Kavanaugh, doesn't have the power to regulate HFCs, it certainly doesn't have the power to regulate CO2.
By my count, that makes all of them, all six right-wing justices. If I'm right, each will rule against the government's ability to limit CO2 emissions, since Congress had not explicitly delegate that power.
Will the Court Rule Against Executive Branch Regulation Itself?
The other real question raised by this case is this: How far will the justices go to limiting all Executive Branch regulation? Will Gorsuch again cite Schechter, a largely ignored 1930s decision that temporarily struck down the Roosevelt regulatory state? (In Schechter, the Court ruled that Congress cannot broadly delegate its regulatory authority. The justices, after Roosevelt threatened to expand the Court, reversed themselves.)
If Gorsuch does cite Schechter again — I think it's likely; he's a big Schechter fan — how many justices will concur with his opinion? Last time he got three. Will he get five this time? If he does, the regulatory state itself may be next on the cutting room floor.
Rule by the unelected few — a right-wing fever dream is about to come true. It's going be an interesting next couple of years, and not in a fun way.