The Supreme Court’s EPA ruling will ‘make effective governance much harder': law professor

Environmentalists and climate change activists were dealt a severe blow on June 30, when the U.S. Supreme Court handed down its 6-3 decision in West Virginia v. EPA and greatly limited the Environmental Protection Agency’s ability to regulate power plan emissions.

The decision came during a summer in which extreme weather events, which environmentalists are attributing to climate change, have been especially plentiful — from heatwaves, droughts and wildfires in both the United States and Europe to record flooding in Sydney, Australia (although June-August is winter in Australia because it’s in the world’s southern hemisphere).

London had a record high of 104F/40.3C, and St. Louis, on July 25-26, suffered more than 9 inches of rain — events that, according to climate change activists, serve as painful reminders of how bad a decision the High Court made in West Virginia v. EPA.

But according to Georgetown University law professor Lisa Heinzerling, handcuffing the EPA is only the tip of the iceberg when it comes to the damage the Court’s West Virginia v. EPA damage will cause. Heinzerling, in an article published by The Atlantic on July 26, warns that the Court’s GOP-appointed supermajority has made regulation in general "much harder" for government agencies.

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“Like many governmental agencies, the Environmental Protection Agency has an elaborate process for developing important rules,” Heinzerling explains. “As I saw during the Obama Administration, when I headed the EPA office that oversees this process, getting a major rule over the finish line can take years. Almost every step of the way offers obstacles to addressing any serious environmental problem. This work just got much harder, if not altogether impossible.”

The Georgetown law professor continues, “In West Virginia v. EPA, the Supreme Court held that Congress may not authorize an administrative agency like the EPA to address an issue of great economic and political significance — in the Court’s parlance, a ‘major question’ — unless Congress speaks extremely precisely in doing so. Broad statutory language, written with the aim of empowering an agency to take on new problems in new ways, will no longer suffice.”

Heinzerling emphasizes that although the Court’s West Virginia v. EPA decision “has the immediate effect of limiting the EPA’s power and flexibility in regulating fossil-fuel-fired power plants under the Clean Air Act,” it “extends beyond that.”

“Any agency that asserts authority over an issue of great economic and political significance could meet a hostile reception in the courts precisely because it has tried to do something big,” Heinzerling warns. “Many agencies will just avoid taking such actions in the first place, knowing the risk. The obvious result could be a federal government with little ability to tackle many of the biggest issues society faces…. The Court’s major-questions doctrine will make effective governance of this country even harder than it has long been.”

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Heinzerling adds, “Somewhat ironically, the first victim is Congress itself. Congress has long addressed important problems by empowering agencies to regulate based on newly developed scientific and technical information. That is what Congress did in the Clean Air Act and in the public-health and workplace-safety statutes the Court narrowed in the COVID cases.

"All laws with a similar structure, passed in at least implicit reliance on a different interpretive framework from the one the Court has embraced, are now vulnerable to severe judicial cropping," Heinzerling continues. "So, while the Court is purporting to hand Congress the baton, in reality, it’s creating a major hurdle that will stand in the way of Congress’ work.”

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