supreme court climate change

Op-ed: Reflections on the Supreme Court’s Decision in West Virginia v. EPA

Danger resides in the majority’s having invoked a sweeping “Major Questions Doctrine” to justify its decision in this relatively narrow case.

The recent 6-3 U.S. Supreme Court decision in West Virginia v. EPA was an exercise of raw political power.

The anti-regulation, conservative majority did it with a highly contrived, legally threadbare argument simply because they could. Notably, the dispute was about a regulation — the Clean Power Plan (CPP) — that was no longer in effect.

It’s also worth noting that market forces had already done more to drive a transition away from coal in U.S. electricity generation than the CPP had been predicted to do, had it stayed in force.

The only apparent reasons for the Supreme Court to take the case were (1) to allow the Court’s most radical majority in modern times to reduce the Environmental Protection Agency’s authority to address climate change, and (2) to do so in a way that would open the door to future decisions reining in the power of the so-called “administrative state” to regulate industry under broad guidelines granted by the Congress.

Depriving the agency of an important option 

What the decision explicitly forbids EPA to do is to use “generation-shifting mechanisms”— that is, forcing electricity generators to shift to cleaner options -- to reduce the reliance of U.S. electricity generation on coal-fired power plants.

The ruling does not deprive EPA of the right to regulate coal-fired power plant emissions in other ways, such as with emission standards or technology requirements applied to specified types of plants. (One could assume the Court only left those options open to EPA because it was only the generation shifting options that had been challenged in the case the Court was reviewing.)

The Court’s majority claims it is simply returning to Congress the opportunity to indicate whether or not it intended to delegate to EPA authority to do the specific thing that the disputed regulation did; but the majority is well aware there’s no chance the current Congress would come down in favor.

While the ruling does, then, deprive EPA of one important option for regulating greenhouse-gas emission, the far larger danger resides in the majority’s having invoked a sweeping “Major Questions Doctrine” to justify its decision in this relatively narrow case.

Dangerous doctrine 

That majority declared that this newly labeled doctrine — whose antecedents in previous Court decisions do not fit the current case (see Justice Kagan’s dissent)― holds that rules imposed by EPA or other Executive Branch agencies are subject to judicial review if the rules have major economic or other societal impacts and were not authorized, explicitly and in detail, in the language of Congress’s delegation of authority to the agency in question.

Inasmuch as Congressional delegations of regulatory authority to Executive Branch agencies often do not specify the specific regulatory tools the agencies may use (for the good reason that Congress lacks the relevant expertise and doesn’t wish to constrain those better equipped), the majority’s newly elevated doctrine puts a vast array of environmental and business regulations at risk when this Court finds opportunities to review them.

John Holdren is a research professor in Harvard University’s Kennedy School of Government and Co-Director of the Science, Technology, and Public Policy Program in the School’s Belfer Center for Science and International Affairs.

From January 2009 to January 2017, Holdren was President Obama’s Science Advisor and Senate-confirmed Director of the White House Office of Science and Technology Policy

A view of solar panels and wind turbines in the background

‘Not based in reality’: Climate groups pan study added to Maryland's major energy bill

The Maryland Utility RELIEF Act cost study draws criticism for bias against wind and solar energy, while supporters say it clarifies costs for ratepayers.

A view of an oil refinery at sunset

Climate hopes dim in New York even as Western states join on cap-and-trade

Even as California and Washington state prepare to merge their cap-and-trade climate programs, New York's retreat from creating a similar program has sparked renewed debates about energy costs.
A view of a street with houses with cracked facades

'Shrinking-swelling’ phenomenon is putting 12m French homes at risk. Is climate change to blame?

More than half of the detached houses in France are under threat by rising temperatures, spurring the government to fight back.
Three firefighters fighting a wildfire

These maps show exactly where the West might burn this summer

Drought, low snowpack, and a winter heatwave have left every state in the Western U.S. facing an above-average risk of summer wildfires.
A pile of red and green coffee beans

Brazilian researchers remix coffee varieties to confront climate challenge

Researchers in Brazil are crossbreeding arabica coffee with rare, more resilient species to help the crop survive rising temperatures, drought and disease.

A female scientist standing at a lab table looking into a microscope

Opinion: One year in, the anti-science agenda of the Trump administration is evident

We are now more than a year into President Trump’s second stint in the White House, establishing a grim and undeniable record of attacks on science.

Poster reads "The UN Summit of the Future is the Summit of Our Future
Credit: UNICEF/Unsplash

Global climate panel faces strife, potential funding crunch

Major reports from the Intergovernmental Panel on Climate Change are still on track, but procedural gridlock and a looming funding shortage hint at future problems.
From our Newsroom
Multiple Houston-area oil and gas facilities that have violated pollution laws are seeking permit renewals

Multiple Houston-area oil and gas facilities that have violated pollution laws are seeking permit renewals

One facility has emitted cancer-causing chemicals into waterways at levels up to 520% higher than legal limits.

Regulators are underestimating health impacts from air pollution: Study

Regulators are underestimating health impacts from air pollution: Study

"The reality is, we are not exposed to one chemical at a time.”

Pennsylvania governor Josh Shapiro speaks with the state flag and American flag behind him.

Two years into his term, has Gov. Shapiro kept his promises to regulate Pennsylvania’s fracking industry?

A new report assesses the administration’s progress and makes new recommendations

silhouette of people holding hands by a lake at sunset

An open letter from EPA staff to the American public

“We cannot stand by and allow this to happen. We need to hold this administration accountable.”

wildfire retardants being sprayed by plane

New evidence links heavy metal pollution with wildfire retardants

“The chemical black box” that blankets wildfire-impacted areas is increasingly under scrutiny.

Stay informed: sign up for The Daily Climate newsletter
Top news on climate impacts, solutions, politics, drivers. Delivered to your inbox week days.