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 Notably, the dispute was about a regulation — the Clean Power Plan (CPP) — that was no longer in effect.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 an office building roof with solar panels on it

Green energy in healthcare: climate impact & resilience

Transforming healthcare energy use matters because reducing greenhouse gas emissions translates directly into healthier communities, lower disease burdens, and stronger medical systems.

An aerial view of historic waterfront buildings on Ocean Boulevard and Hampton Beach State Park, Town of Hampton, New Hampshire NH

In New Hampshire, a race to insulate vulnerable neighborhoods against sea-level rise

Millions of dollars in infrastructure improvements are helping one particularly hard-hit Hampton, New Hampshire, neighborhood cope with the effects of climate change.

Greenhouses stretching into the distance with interior lights illuminating the night sky

Japan's farmers go nocturnal as deadly heat intensifies

As summer heat intensifies in Japan, farmers are adapting by working through the night and before dawn.
An image of an airplane flying above the clouds

Flights over Atlantic will adjust paths in test to reduce contrails

Hundreds of commercial flights will be told to change their paths over the northeastern Atlantic Ocean during the next two winters to show how minor altitude adjustments can reduce aviation’s climate impact.
Solar panels stretched across a rocky landscape

Why Egyptian farmers are growing crops under solar panels

The additional shade reduces evaporation and stress on the plants, all while generating clean electricity.
Two people's hands on a table with trays of burgers and coca cola in glasses

Teens and young adults, especially educated men, tend to have higher food emissions

Slashing food-related emissions needs varied strategies for different ages and countries, two new studies find.
A wooden fence in a clearing between trees opening up to the English countryside

Climate change is rewriting England’s ‘green and pleasant’ story

A country defined by verdancy and mildness is neither of those things as climate change makes England hotter.
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.