How the Supreme Court’s EPA ruling undermines the Biden agenda

20 July 2022

For more than half a century, the U.S. Supreme Court allowed the Environmental Protection Agency — created under President Richard Nixon in 1970 — to regulate as it saw fit. But that changed on June 30, 2022 with the Court’s 6-3 ruling in West Virginia v. EPA, which curtailed the EPA’s ability to regulate power plant emissions.

The ruling comes at a time when scientists are seeing more and more evidence of the effects of climate change. From record flooding in Australia to heatwaves and wildfires in both the United States and Europe, extreme weather events have been common this July. The High Court’s ruling is a major setback to the Biden Administration’s environmental agenda, and according to Politico’s Alex Guillén, it will affect President Joe Biden’s goals in other areas as well.

“Fallout from the Supreme Court’s attack on federal climate regulations is spreading throughout the executive branch, creating legal uncertainty for rules on topics as far afield as abortion, immigration and even amateur auto racing,” Guillén explains in an article published on July 20. “Opponents of federal actions on pipelines, asbestos, nuclear waste, corporate disclosures and highway planning are also seizing on the logic of the Court’s June 30 decision, which imposed sharp limits on the Environmental Protection Agency’s authority to regulate greenhouse gases.”

Guillén notes that in West Virginia v. EPA, the Court’s 6-3 Republican-appointed majority “invoked what they called the ‘major questions’ doctrine to declare that agencies such as EPA need explicit congressional approval before ‘asserting highly consequential power’ over almost any policy area.” The reporter adds, however, that the right-wing justices “did not offer a precise definition of what would cause a regulation to qualify as major.”

Nathan Richardson, a law professor at the University of South Carolina, described the ruling as a reversal of courts showing “deference” to regulatory agencies in light of their policy expertise.

Richardson told Politico, “If anything’s ambiguous at all, you get people challenging on major questions grounds, and you have to go find out if Congress gave you an extra clear statement…. It’s not deference, it’s anti-deference.”

According to Guillén, the Court’s West Virginia v. EPA ruling is affecting “niche legal battles.”

“Texas Attorney General Ken Paxton used the climate decision to attack the Nuclear Regulatory Commission’s licensing of a waste disposal site in the state and a proposed EPA asbestos ban,” Guillén observes. “Refrigerant makers say the doctrine means a court should strike down an EPA ban on disposable containers holding hydrofluorocarbons, a type of greenhouse gas. And racing enthusiasts argue that the Supreme Court’s reasoning applies in their challenge to anti-tampering rules for cars used in amateur racing.”

The reporter adds, “In addition, Paxton is taking the fight beyond environmental issues. Two weeks ago, he used the major questions doctrine to attack the Obama-era immigration program known as Deferred Action for Childhood Arrivals. And on Thursday, Paxton sued the Biden Administration over its recent guidance on the use of abortion in emergency health care — arguing in part that the Supreme Court’s June 24 decision overturning Roe v. Wade means that abortion at the federal level is now a major question for Congress, not the executive branch, to address.”

Guillén points out that “until recently,” courts in the U.S. “typically relied on a decades-old precedent known as the Chevron doctrine that required judges to give broad leeway to agencies’ decisions about how to carry out ambiguous laws.”

“The Supreme Court hasn’t overturned that doctrine, named after the 1984 ruling in Chevron v. Natural Resources Defense Council,” Guillén notes. “But in several recent cases — including the EPA climate case — the Court has avoided invoking Chevron in favor of alternatives. In the EPA case, it used the term ‘major questions doctrine’ for the first time ever in an opinion, though the doctrine has been developed over decades of cases.”

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