If it feels as if the Supreme Court is hellbent on dividing us further, last week's ruling on the Environmental Protection Agency’s powers raised that feeling to whole new level.
In effect, the 6-3 decision constrains the EPA in regulating greenhouse-gas emissions from stationary sources — power plants in this particular case. At the heart of this is something called the “best system of emissions reduction,” or BSER. The Clean Power Plan promulgated by the EPA during President Barack Obama’s administration determined that the best way to reduce emissions from coal-fired plants — their BSER — was to replace them with natural gas or renewable power. Efficiency improvements or nascent technologies such as carbon capture wouldn’t accomplish enough. Opponents claimed the EPA, by effectively forcing a restructuring of the country’s power-plant fleet, had overstepped its bounds under the Clean Air Act. The Supreme Court now backs that view.
Several aspects of this dispute make the court’s judgment dubious, beginning with the fact that the Clean Power Plan never actually went into effect. Second, the basis of Chief Justice John Roberts’s opinion is something he terms the “major questions” doctrine: If a government agency derives a far-reaching power from vaguely worded legislation, and the court thinks that power is a big deal, it can be blocked. This not only undermines the so-called Chevron doctrine that has held for roughly four decades — without Roberts explicitly saying so — but also reserves for the court a highly subjective veto on sweeping areas of regulation and governance.
