Granting a petition by several states and coal companies, the supreme court on 28 February will address what appears to be a technical legal question: does the Environmental Protection Agency have authority to calculate CO2 emissions targets for power plants based on mitigation techniques involving steps “beyond the fence-line” of individual plants? In truth, the matter the court is considering implicates –and imperils – the federal government’s power to fashion flexible solutions not only to global warming but to all manner of complex problems.
The stakes are higher still: by ruling on the case at all, the court usurps power constitutionally entrusted to government’s politically accountable branches. Article 3 of the constitution limits federal courts to deciding concrete “cases and controversies” about the rights of individual parties. Yet this “case” involves neither a concrete dispute nor the specific rights of any of the challengers. Instead, it’s akin to an exam question about the options theoretically available to a federal agency to address a grave problem. In answering that hypothetical question, the court will have arrogated to itself an unprecedented, open-ended power to reshape the nation’s social and economic landscape – far in excess of its legitimate authority, as the foundational case Marbury v. Madison put it, to “declare what the law is”.
The court has avoided such a wide-ranging role ever since our founding, when Chief Justice Jay refused President George Washington’s 1793 request for legal advice about America’s obligations under treaties with France and Britain, concluding that issuing such an “advisory opinion” to guide the nation’s foreign policy would exceed the court’s constitutionally assigned power. The underlying axiom is neither liberal nor conservative but universal. As Justice Brett Kavanaugh wrote for the court just last term, “federal courts decide only ‘the rights of individuals’ [and] do not possess a roving commission to publicly opine on every legal question.”
The role the court is poised to play in West Virginia v. EPA is more breathtaking still. It stands ready not just to “publicly opine” on a broad legal question but to bind the entire federal government to its answer, restricting the range of policies the EPA –under President Joe Biden and future presidents – can even consider to reduce carbon dioxide emissions and tackle climate change.
Issuing any such “super advisory opinion” would seize the power to set regulatory policy itself – a perversion of separation of powers unthinkable just a few years ago. Yet, as its recent onrush of breaks with precedent, procedure and prudence to achieve the ultra-conservative majority’s policy preferences on abortion, public health and voting rights demonstrate, today’s court flouts all institutional bounds. As it charges ahead, what remains of the court’s legitimacy, the constitution’s allocation of decision-making authority, and the planet’s future all hang in the balance.
How did we get here?
In 1970, Congress passed the Clean Air Act, empowering the new EPA to regulate dangerous pollutants like carbon dioxide to make our air safer; indeed, after the supreme court’s 2007 decision in Massachusetts v. EPA, the act requires EPA to seek lower CO2 emissions. One section tasks EPA with identifying the “best system of emissions reduction” that’s feasible to reduce CO2 from existing power plants, the largest category of stationary emitters.
In 2015, to meet American commitments under the Paris Climate Accords, President Barack Obama’s EPA promulgated the Clean Power Plan – an ambitious plan to shrink power sector emissions by more than 30%. It hinged on a central notion: the CAA’s “best system” language didn’t contemplate only reductions individual plants could achieve by themselves, but authorized EPA to consider reductions the entire electrical grid might achieve by working as an integrated whole. Thus, EPA could design, as its “best system”, a scheme in which power companies reduced emissions by substituting cleaner energy like renewables and natural gas for dirtier coal – a tactic known as “generation shifting”.
The plan was challenged on numerous legal grounds. Some insisted EPA could not so broadly construe the statutory word “system”, a claim difficult to square with the foundational doctrine of “Chevron deference,” under which courts defer to any “reasonable” agency interpretation of an “ambiguous” term like “system”. The senior author of this column challenged EPA’s plan on the narrower basis that EPA had rested its legislative authority on nonexistent power to choose which of two versions of the CAA Congress had enacted. In any event, the supreme court stayed the plan’s implementation in 2016 while the DC circuit sorted out its legality.
When Donald Trump was elected president months later, he sought to repeal the CPP. His EPA could have done so by just changing its preferred policy or legal interpretation, as supreme court doctrine readily permits agencies to do. But the Trump administration wanted more: to permanently foreclose any remotely similar plan. So it based its repeal on the mind-boggling theory that CAA’s text unambiguously barred not only CPP, but any system of emissions reduction that couldn’t be entirely effectuated within the “fence-lines” of stand-alone power plants. That interpretation barred not only generation shifting, but also far less controversial techniques like biomass co-firing (mixing biological material into portions of what coal plants burn for energy). This extreme reading was belied both by the basic functioning of our integrated, unitary power grid, and by previous EPA and supreme court interpretations of all relevant language. If the increasingly reactionary federal judiciary upheld that strained construction as mandatory, it would be locked in until Congress enacted a new regulatory framework. Realistically, that might mean forever.
Buttressing its twisted textual reading, Trump’s EPA invoked the “major questions doctrine” – an altogether amorphous weapon the court recently invented to strike the Center for Disease Control’s eviction moratorium and the Occupational Safety and Health Administration’s workplace vaccine-or-test mandate. Its premise is radical: wherever a court deems an agency’s policy choice to have resolved a “major question”, it must nullify that choice unless Congress, in enacting the relevant statute, anticipated the precise question and unmistakably authorized the agency’s precise answer.
That doctrine licenses judges to strike down whatever policy they disfavor – and invites agencies to opportunistically disclaim any regulatory authority they’d prefer not to exercise. It’s also inconsistent with the fact that contemporary social problems are too complex and interwoven with changing circumstances for Congress to predict every policy answer with technical precision, requiring that it legislate in broad terms and task expert agencies with filling in the details. Routinely applying the “major questions doctrine” might thus nihalistically nuke federal power to solve nearly any important problem.
Trump’s EPA did just that in repealing CPP, proclaiming itself categorically powerless to consider any “beyond the fence-line” emissions reduction systems because CAA either unambiguously precluded such consideration or failed unambiguously to empower such consideration, as the “major question” doctrine supposedly demanded.
Dozens of environmental groups and blue states challenged the repeal in court, and a day before Biden assumed office, the DC circuit held Trump’s interpretation not the only permissible reading of the text and struck down the repeal as legally flawed. Although CPP might have “snapped back” into force, the DC circuit stayed its judgment until Biden’s EPA could formulate a new rule. Given intervening legal developments – and years of rapid change in the power sector that achieved CPP’s emissions targets through free-market behavior – the agency had prudently asked for time to promulgate an entirely new rule.
This was a big win for the coal companies and CPP’s red-state opponents; with both the rule and its replacement stayed, no applicable regulation exists. None. When Biden’s EPA suggests a new rule, it will be immediately reviewable in federal court. Until then, CPP’s opponents have their wish: less federal CO2 regulation – in fact, none at all. In every sense, the dispute has become moot until EPA proposes a new rule imposing actual obligations on the states and companies.
Unsatisfied with that temporary victory, the states and coal companies filed several petitions asking the supreme court to hear the case and permanently lock in Trump’s defenestration of EPA’s authority – lest they be injured by what Biden’s EPA might someday propose if the court doesn’t proactively clip the agency’s wings. Given that no regulations currently apply, no clever framing can disguise the obvious: they’re asking the court for a “super advisory opinion”, prematurely answering an abstract question to preemptively bind an ideologically opposite administration before it has a chance to govern.
Equally worrying, several of the briefs urge the court to adopt extraordinarily broad understandings of when and how the “major questions” doctrine applies; to entirely overturn Chevron, one of the court’s most deeply entrenched precedents; and to gut nearly the entire CAA by reviving the long-dormant “non-delegation doctrine” – last employed by the ultra-conservative Lochner-era court to frustrate the New Deal in the 1930s. A super advisory opinion in this case has the potential not only to gut EPA’s power to regulate pollution and climate, but also to severely blunt the regulatory authority of nearly the entire federal government.
As one of us has written elsewhere, “law’s constraints are no match for power’s voracious appetite.” To an unaccountable tribunal of life-tenured, ideologically inclined justices, no doctrine presents an enforceable barrier to impulses of the most blatantly partisan variety. But hope is not yet lost. As the conservative Justice Antonin Scalia often emphasized, the ourt retains a “special obligation” to re-evaluate its own authority and to dismiss cases whenever jurisdictional defects are discovered. To hear this case, four justices sufficed; perhaps five others will recognize what centuries of precedent make clear: the court should dismiss the case and wait until an actual EPA regulation creates a concrete, live dispute. We can still urge and cautiously hope for that prudent approach; all the justices “are, in the end, masters of their craft and know that their power requires them to act as lawyers”.
Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law emeritus at Harvard Law School. His many books include American Constitutional Law, the most frequently cited treatise on the US constitution. You can follow him on Twitter @Tribelaw. Jeremy Lewin will receive his JD degree from Harvard Law School in Spring 2022
