Supreme Court Swings at Phantoms in West Virginia v. EPA

Robert Fischman

June 30, 2022

In West Virginia v. EPA, the U.S. Supreme Court slayed a phantom, a regulation that does not exist. Why? The justices in the majority could not contain their zeal to hollow out the EPA’s ability to lessen suffering from climate change in ways that impinge the profits of entrenched fossil fuel interests.

In doing so, the activist justices reached out to interpret the Clean Air Act despite the Court’s traditional restraint in deciding only cases where plaintiffs suffering individualized harm present a focused, redressable dispute. The Court has been particularly strict in foreclosing judicial review when environmental plaintiffs complain about prospective rules and actions. But today’s decision eagerly engaged with the speculative harms presented by West Virginia and coal companies. They were not harmed by a regulation that never took effect and that never will be implemented.

In its “what if” analysis, the Court claimed for itself the power that presidents historically exercised through selecting agency officials to implement the administration’s agenda. This decision narrows the interpretive authority of those appointed officials, such as the EPA Administrator. It substitutes the judiciary for the executive branch in fleshing out broad congressional commands, such as “prescribe regulations … [establishing a] standard of performance for any existing source for any air pollutant.” In this case, the existing source is power plants and the pollutant is carbon dioxide, the biggest contributor to heating the planet.

The majority narrowed the traditional test, which allowed agency rules based on a reasonable interpretation of the statute authorizing the regulation. Instead, the conservative judges abandoned their originalist commitments in the service of their agenda to narrow executive power exercised through agencies. They adopted a recent judicial invention with no basis in the Constitution or the Clean Air Act. Now, certain high-stakes regulations, even if they are within the expertise of the agency, must be based on legislative text in which Congress spoke clearly to authorize the specific limits on businesses.

The majority opinion reduces the menu of options for the Biden administration’s push to reduce climate destabilizing pollution through vehicle tailpipe emission standards and fuel switching for super-polluting, coal-burning power plants. This is a significant setback because the transportation and electric power industries are the biggest contributors to the United States greenhouse gas emissions and the misery these pollutants cause.

In an era where Congress has largely checked out of environmental lawmaking, West Virginia v. EPA will hobble the ability of the EPA to respond to new environmental problems that inevitably arise from the progress of science and technology. The Court now seems to think that Congress should foresee all possible new dangers for an agency it empowers to protect the public.

The decision, however, does leave some room for the EPA to make progress on the president’s climate goals. The EPA could regulate more strictly many of the other harmful pollutants associated with fossil fuel power plants. The American Lung Association reckons that about 40 percent of Americans (nearly 140 million people) live with unhealthy levels of particle pollution or ozone. The EPA can use traditional means to set more stringent standards on emissions that cause those problems. That would force some power plant producers to reduce their reliance on combustion, indirectly slowing the impacts of climate disruption.

The EPA could also turn to other provisions of the Clean Air Act to directly regulate carbon dioxide as a pollutant that contributes to harms in other countries or as a hazardous air pollutant. But these approaches might face the same problems as the reliance on the standards of performance shot down by the Court today.

In 1963, the Supreme Court declared that “while the Constitution protects against invasions of individual rights, it is not a suicide pact.” Nothing in the Constitution required the court to extend its power to interpret the Clean Air Act in this case. Moreover, the Court’s formulation of the “major questions” doctrine is a novel judicial doctrine not mandated by any law. It is a court-created instrument to roll back congressional efforts to protect public health and safety through expert agencies acting flexibly under legislative standards.

The threat posed by the Court’s new, activist majority to public and planetary health is not limited to West Virginia v. EPA. In eliminating Roe v. Wade’s right to abortion last week, the majority discussed which personal interests count when the Court considers overruling precedent. The concept of stare decisis protects reliance interests by preserving settled law even when justices disagree with past decisions. Last week’s abortion decision held that women did not have the necessary “substantial reliance interests” to sustain Roe’s precedential value. Instead, the reliance interests that matter for the Court are property and contract rights (and any others “like” them).

The Dobbs majority rejected the notion that adverse effects on society and individual lives from overruling Roe could save the precedent. In this respect, West Virginia is of a piece with Dobbs. Its reasoning could well lead the court to overrule other precedent. For instance, around the same time that the Court decided Roe, it held that the injuries sufficient to establish standing to mount a federal lawsuit could be based on harm to aesthetic and environmental interests. But those interests are seldom based on property or contract. This Court may overrule that principle, which would choke off many of the lawsuits that force the government to address environmental impairment.

Likewise on the chopping block may be Massachusetts v. EPA, which held that emissions causing climate disruption are covered by the Clean Air Act’s definition of pollution. It is the polluters who tend to have property and contract reliance interests on their side, not the people suffering the effects of pollution. Our reliance on a climate that supports food production and pollution assimilation would not seem to count in the majority’s balance sheet.

In West Virginia v. EPA, the court makes it harder for the EPA to stop preventable death and suffering from heat waves, wildfires, floods, drought, and other extreme environmental conditions beyond our historic experience. The science is unequivocal about how to reduce these hazards to human life. The Court’s invented, non-originalist, anti-textualist view of the Constitution risks Americans’ health when it blocks the executive branch from fulfilling the goals of the Clean Air Act.

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