Supreme Court's Major Question Doctrine Combined With the Filibuster Makes Climate Change Action Difficult

But Congress Sidestepped the Court Enacting the Inflation Reduction Act With Tax Credits and Grants to Reduce Air Pollution

The Supreme Court decided West Virginia v. EPA, 597 U.S. ___ (June 30, 2022) in which the Court, in an Opinion by Chief Justice Roberts, held that the EPA did not have valid authority from Congress to adopt a Clean Power Plan (“CPP”) to reduce electric utility emissions by promoting “generation shifting” from coal fired generators to less air polluting sources. The EPA adopted the Obama Administration’s Clean Power Plan in 2015, but it was never put into effect, as a series of extraordinary judicial stay orders and withdrawal of the CPP during the Trump Administration, resulted in no action to reduce air polluting emissions from power plant sources. The Biden Administration then said that they did not intend to utilize the CPP due to technological advances and energy market changes and they withdrew the CPP, and EPA was working on new regulations to address power plant air pollution.

But Chief Justice Roberts and his six-member conservative majority could not wait for EPA to develop and issue its proposed regulations. Even though there was no regulatory framework adopted and CPP was withdrawn, the conservatives were eager to squelch any revised EPA regulations or plans, so they barreled ahead with the case even though there was nothing to review. Normally judicial review needs to review something, but here there was nothing. But having nothing before them did not stop our six-member conservatives with CJ Roberts devising some metaphysical arguments that the Court still had the power and duty to review nothing because the EPA might do something in the future. Sartre, author of Being and Nothingness, and Heidegger, author of Being and Time, would be intrigued by the Court ruling on nothing.

So why did the Court conservative majority take this unprecedented step to review nothing? It was because they had some new things to say on the power or lack of it for administrative agencies to adopt any regulatory plan, and they were determined to issue their new edicts limiting administrative agency action. Many thought there was no Article III case or controversy before the Court or that the case was moot, but the six-member conservative majority wanted to fire their new doctrines across the bow of the administrative agency world. So, they decided to follow the teaching of T.S. Eliot in the “Cocktail Party” where he said, “Of all my achievements in life this is by far the greatest, to make something out of nothing.”

What is this new doctrine that could not wait for a real case: the Major Question Doctrine (the “MQD”). If the Court determines that the administrative action is subject to the MQD, then, according to CJ Roberts, “something more than a merely plausible textual basis for the agency action is necessary. The agency must instead point to ‘clear congressional authorization’ for the power it claims.” The MQD is intended to address “a particular and recurring problem: agencies asserting consequential power beyond what Congress could reasonably be understood to have granted.”

But what is a MQD? CJ Roberts never defines a MQD in his opinion. Apparently, it is something that is consequential, a change from prior regulatory action, has substantial effects on the economy, is important or an extraordinary exercise. Justices Gorsuch and Alito, in a concurring opinion, say that a MQD is a regulation of “vast ‘economic and political significance.’” If there is a MQD then an agency needs to point to “clear congressional authorization” to enable it to make decisions as a delegation from Congress. Interestingly, in neither Roberts opinion or in Gorsuch and Alito’s concurrence is any mention made of the importance of the issue for American society, health and welfare. But the Majority lack of firm definition of MQD reminds one of Justice Potter Stewart’s most quoted line in a case, Jacobellis v. Ohio, dealing with whether a motion picture was “hard core” pornography, where he wrote “I know it when I see it.”

But by leaving the definition of MQD so vague, and the consequence of a MQD characterization being that the Congress needs to be extremely clear in the nature, parameters and scope of the delegation to an administrative agency for it to be valid, the Court has actually engaged in a power grab of its own. Only the Court can definitely state if a MQD is present and whether the Congressional delegation is sufficiently precise to satisfy the Court. The Court puts itself at the pinnacle with the Congress and the Executive below it, and the Court’s ambiguity in defining a MQD and the resulting level of specificity and precision needed in the Congressional delegation gives it tremendous power to curb needed regulatory enactments with which the conservative majority disagrees.

Nowhere in the Court’s opinion is any recognition given to the elapse of seven years since the adoption of the Clean Power Plan in 2015 which litigation and changes in Administration have kept it on the shelf. In the same period of time the effects of air pollution on the atmosphere we breathe, and the advancement of unmitigated climate change continued. The United States has agreed to significant reduction in greenhouse gases, but every year we get further and further behind in implementing needed alterations in our energy production to address climate change as the Clean Power Plan is bounced around in the courts and subjected to the political winds. The Court’s decision in this case could further send power plant emission controls back to the Congress for further deliberation and delay: what many assume was the real purpose of the conservative challengers in court and the efforts of the Justices to further delay effective power plant regulation through the MQD designation.

The Court is forcing Congress to get into the details, to a degree not previously thought necessary, and adopt Congressional delegations to the EPA and other agencies which are very detailed and specific. But there are several problems with that new directive. First, regulation of power generating utilities is complex and requires a degree of scientific knowledge and understanding not possessed by the average member of Congress. Afterall, one of the primary reasons for creating administrative agencies was to provide a place where people with sufficient and necessary expertise could adopt regulatory formats responsive to societal and governmental needs. Training members of Congress in necessary scientific, engineering, and mathematics to effectively deal with climate change and greenhouse gasses would be very difficult and would further delay authorizing legislation. And furthermore, what level of specificity will the Court require? No one knows.

Second, obtaining agreement on legislative language is always difficult, but requiring signposts, parameters, and boundaries in the delegations would put an even greater strain on the legislative process where give and take and accommodation is necessary to obtain agreement. Congress could get wound in the details with which they were unfamiliar, and that might cause further conflict and an inability to come to agreement. The legislative process often requires ambiguity and vagueness to obtain agreement. But the Court in the case of MQDs wants to make the legislative process all the more difficult.

Third, and perhaps, currently, most important, the filibuster rules in the Senate which currently require 60 votes to end debate, make getting a high degree of specificity in delegations all the more likely to lead to bills never getting to a floor vote on the merits. Perhaps this is another goal of the conservatives to prevent climate change legislation from being able to obtain the 60 votes necessary to end debate. If the filibuster remains, and I personally want to see it abolished for all issues and purposes as anti-democratic, then MQD delegations to be approved by the Supreme Court will require clever legislative language and skillful negotiation to see effective climate change and other significant legislation. The Republican aggressive use of the filibuster, not even requiring them to hold the floor, further makes environmental and regulatory delegations hard to enact.

Justice Kagan in her dissent for herself and Justices Breyer and Sotomayor says that the cases cited by CJ Roberts as precursors of his MQD are cases where an agency got outside its area of expertise or as she says outside its normal lane. That is certainly not the case here where EPA was doing rule making clearly in the center of its lane of expertise: regulating air pollution emissions.

A personal observation about the effects of global warming and climate change: on a cruise off the coast of Norway in 2019, we were 300 miles above the Arctic Circle and the temperature was 68 degrees and people were going to the beach.

But the Chief Justice and the conservative majority have shown a bit of hubris in their attitude about the Congress and delegations and failing to give recognition to the problems discussed above. I was amazed to see a recent comment by CJ Roberts, where he said at the 10th Circuit Judicial Conference in Colorado, “You don’t want the political branches telling you what the law is.” (emphasis added). Well Mr. Chief Justice, did we get ourselves a little over our skis? Who do you think creates the law of the land, surely the Congress is the principal legislator and law maker, and the Court should merely be the interpreter of statutes though it is, for now, the final authority on the Constitution.

Congressional Action and Response

Shortly after the decision in West Virginia v. EPA, Congress adopted the Inflation Reduction Act (the “IRA”) which included tax code changes, environmental and climate provisions, changes allowing Medicare drug payment negotiations for some drugs and other provisions. But provisions to address environmental and climate change constitute the bulk of the IRA.

The IRA did resolve one issue prevalent in West Virginia; Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014); and Massachusetts v. EPA, 549 U.S. 497 (2007). It clearly defines what are considered greenhouse gases to include the “air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.” See Section 60101 of the Act.

But the IRA did not wade into the morass created by West Virginia v. EPA as it does not contain any language delegating any different authority to EPA to regulate electrical power sources’ discharge of greenhouse gases. Instead, the IRA provides a broad set of grants, loans and tax credits some of which are usable by the electrical power generating industry to finance modifications, new technologies, and research on new technologies for both existing and new facilities. Among the programs are the Clean Electricity Production Credit in Section 13701; Extension and Modification of Credit for Electricity Produced from Certain Renewable Sources, Section 13101; Loans for projects to avoid, reduce, or sequester air pollutants or greenhouse gases, Section 50141; Loans to reduce greenhouse gases in energy infrastructure, Section 50144; Loans for electric transmission facilities, Section 50151; and it provides for expanded leasing of offshore land for wind power construction, Section 50251. These various loan, grant and tax credit programs can assist existing and new facilities for generation of electricity to modernize and implement new systems for greenhouse gas reduction.

So the Congressional action provides financing and project funding to utilities to implement greenhouse gas reduction programs without the need to adopt a new Clean Power Plan or some other regulatory program. After the seven year delay of any Clean Power Plan this alternative market approach should provide environmental benefits quicker than if some regulatory plan were adopted.

Congress has worked around the Supreme Court to achieve important results to reduce greenhouse gases.

But the ambiguities in the MQD designation and the difficulty in adopting regulatory delegations that would satisfy the six-member conservative Court majority will prove an impediment to other regulatory efforts. The Supreme Court has found a way to strangle the regulatory state, a result sought by recently convicted Trump advisor, Steve Bannon, and the Federalist Society.