Strict Scrutiny - Just how bad is the Supreme Court's EPA decision?

Episode Date: July 1, 2022

Kate and Leah break down the "free-wheeling, free association analysis" of the Supreme Court's opinion in West Virginia v. Environmental Protection Agency. Basically, it's bad! And not just because of the impending climate apocalypse! Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your podcast about the world burning, or really being burnt by the Supreme Court of the United States. We're your hosts. I'm Leah Littman. And I'm Kate Shaw. And we've got a quick emergency episode for you today about the court's major climate change case that also doubles as a broadside attack against administrative agencies and governance as we know it, because it's a holiday weekend and we're ready to party.

Independent of the last 200 years of American jurisprudence and governance and yeah. This is just how we celebrate Independence Day now. I think that's exactly right. Okay, so today's episode, or really tonight's episode, is about West Virginia versus EPA. This is the case where the court uses its newly made up major questions doctrine to strike down a non-existent regulation because hashtag YOLO. think every single time a new opinion or order list appears on their web page, it is basically more confirmation that this is the YOLO court. I feel like it's a matter of time before one of the dissenting opinions actually contains an explicit reference to their YOLO colleagues. I mean, we're not quite there yet, but we're really close. Do it, Elena! Do it!

But we'll keep doing it in the meantime. So we will probably come back to this case over the summer because there's a lot to unpack in it. But as we have detailed previously, the case has this incredibly weird posture. And so let's briefly just recap it. So during the Obama administration, the EPA announced the Clean Power Plan to reduce greenhouse gas emissions from power plants. Now, the Supreme Court stayed that rule, right, prevented it from going into effect before a court of appeals decided whether the rule was lawful.

And this was totally extraordinary, okay? The Supreme Court had never reached out and put a rule on hold like this before the rule had gone into effect and before it had been considered by the lower courts. And this was a 5-4 order, right, by the conservative justices. And it gave a pretty clear sign of the court's hostility to this regulation. But this was late in the Obama administration. And once the Trump administration

took over, that administration tried to rescind the on-hold Clean Power Plan and announce its own rules regarding climate. And the short version of those Trump administration rules is basically like a manifestation of this line from Batman about the Joker. Some men just want to watch the world burn. Right. I said Trump rules. It should have been like unrules, right? They're literally the opposite of what rules traditionally do. Right. because one of the Trump administration rules repealed the Clean Power Plan, and another rule stated the administration's views that the Clean Air Act did not allow the EPA, the Environmental Protection Agency, to engage in so-called generation-shifting rules,

basically rules that said, you know, you power plants can use other methods of generating energy to satisfy this rule rather than reduce emissions from the current methods of generating energy that the plants use. So a rule that basically said you can comply with this rule by using solar power or wind power rather than coal, you know, that is what it means to be a generation shifting rule. So there's a challenge to what the Trump administration has done, both its rescission of the Clean Power Plan rule and its own unrule rule. And the D.C. Circuit ruled both that the Trump administration had not validly rescinded the Obama era rule and also invalidated the Trump unrule. But that is all around the time of the end of the Trump administration and the beginning of the Biden administration. And the Biden administration, after coming into power,

said, look, we're actually going to adopt our own rule. But before the Biden administration could do so, some GOP-led states pulled out the playbook and asked the Supreme Court to review the case about the validity of the Trump era rules, including the Trump effort to rescind the Obama rule, and to say that the Biden administration couldn't do, I am hesitating here because we have grasped throughout our discussion of this case to accurately convey what it is that is being requested. But it's a pretty bizarro world that this case inhabits. But basically, these red states are asking the court to rule that the Biden

administration can't do some things that the red states expect the Biden administration to likely do, but the administration hasn't actually done yet. The court in this case held that the Clean Power Plan, which again, is not in effect, effect and in fact has never been in effect, and possible regulations that the Biden administration might enact are topics that courts should opine on, which is pretty hard to square with existing justiciability doctrine, like doctrine about what kinds of cases the court can weigh in on. But, you know, why let any of that stand in the way of a good time? Exactly. So having concluded that it will opine on the Clean Power Plan, which again, has never gone into effect, and all of its metrics have been met at this point, so it doesn't actually require power plants to do anything. So the court holds that the EPA did not have the authority under the Clean Air Act to adopt generation shifting rules like the Clean Power Plan under Section 11, a provision that authorizes the EPA to adopt

the best systems for emission reduction. There's a passage in the dissent by Justice Kagan that really calls to mind the odd procedural posture that you were just describing, Kate, where she says, The court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. This court could not wait even to see what the new rule says to constrain EPA's efforts to address climate change. That really called to mind language from Justice Sotomayor's dissent in an earlier case that described the court as newly constituted and restless. And so I just thought that was notable. Totally.

Maybe we can just start out with a note about the consequences or fallout from this ruling. So Rachel Rothschild, who came on the podcast previously to discuss this case and is an environmental law and climate expert, will be joining the faculty at University of Michigan in, I think, just like a week or maybe a day, 24 hours. Her appointment will be effective by the time you hear this podcast. So she unfortunately couldn't join us today, but she did pass along this evaluation of the court's ruling, which I'll just share now. So Rachel says, provisions of the Clean Air Act, such as those for cars and trucks. But at the same time, it's important not to minimize how bad this decision is for addressing climate change. It is hard to see how EPA can now issue a regulation under Section 111 that will make

significant progress on reducing emissions from power plants and pass muster with this court. And that is incredibly unfortunate given the current stalemate in Congress on any new environmental legislation. So it's pretty bleak. And Rachel knows what she's talking about. And this is really, this opinion is going to have the effect of hamstringing the rulemaking process that the Biden administration is in, although by no means should the opinion be read to say they can't or shouldn't try to address emissions. But this court is really hostile. And it looks from reading this opinion as though if EPA tries to do anything remotely like what the Obama administration tried to do in the never actually in effect clean power plan, it won't be allowed to do that. Which, by the way, is just notable because the states rushed off to the Supreme Court asking the court to stay this rule because the rule was just so impossible to

comply with. It was going to put all of these businesses out of business. And it turns out that was just wildly overblown and not at all accurate. And so it's just so dispiriting to think that the court said, actually, the agency can't enact this regulation that, you know, we were going to meet anyways. Like the regulation was never even that aggressive. But you would never know that from reading the characterization in the majority opinion, which we should say is a Chief Justice Roberts opinion that really makes it sound as though these faceless bureaucrats, just guns blazing, decided to just refashion every aspect of the American economy and American life. And really, like, this was not remotely like that. And exactly as you just said, Leah,

the targets were totally achievable inside of a decade. Like, this is already an overtaken set of objectives. And yet, the kind of like ominous depiction for the early narrative of the opinion of this kind of extreme overreach on the part of EPA is kind of what Roberts and the majority want you to think the agency was trying to do here. And it's not as egregious as some of the court's, I think, mischaracterizations of like specific factual points in other opinions that we'll talk about in our regular episode that'll drop Monday, but it's definitely a mischaracterization of the general scope and spirit of the Obama-era regulation. Anyway, so how does this opinion by Chief Justice Roberts get to the conclusion that this Clean Power Plan and other generation-shifting rules are illegal? It does that by solidifying and crystallizing what had been to date passing statements in some

cases about what the court refers to as the major questions doctrine, which was once upon a time, like a footnote in administrative law classes, and is basically now consuming earth. I mean, I think that's essentially what has transpired over the course of about the last year. It was, just as a reminder, the basis on which the court invalidated OSHA's test or vax policy, as well as the basis on which the court invalidated the CDC's eviction moratorium. Both of these were statutorily well-grounded administrative action taken to address the COVID pandemic. And in both cases, the court said, no, this made-up doctrine called the major questions doctrine says you can't agency.

So in a 6-3 opinion, here's what the chief basically says about the major questions doctrine and the inquiry here. He says, okay, there's a statute. It confers authority upon an administrative agency. And when we're trying to figure out whether the statute does give the agency the authority that it's asserting, we have to have an inquiry that is shaped by the nature of the question presented. And our precedent teaches that there are extraordinary cases that call for a different approach, cases in which the history and the breadth of the authority that the agency has asserted, as well as the economic and political significance of the assertion, provide a reason to hesitate

before concluding that Congress is meant to confer such authority. So in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there. In one other formulation, the majority opinion describes the CDC case as a measure that would, quote, certainly raise an eyebrow. And I guess this is another alternative formulation. It's either in extraordinary cases, or it's in certain extraordinary cases, as you just read, or it's in cases where it raises an eyebrow. And this is kind of how the Chief Justice had framed the major questions doctrine at the oral argument as well. So let's play that clip. Why doesn't, I think there's some

disagreement about how to apply it. Why wouldn't you look at it at the outset and say, as I think the Court did in FDA, you know, why is the FDA deciding whether, you know, cigarettes are illegal or not? And then that is something that you look at while you're reading the particular statute, or whatever other things you look at when you're trying to interpret a statute, and see if it's reasonable to suppose that. I mean, just thinking back on Alabama Realtors or the OSHA vaccine case, I don't know how you would read those as not starting with the idea that this, however you want to phrase it, this is kind of surprising that the CDC is, you know, regulating evictions and all that, and then look to see if there's something in there, I guess, that suggests, well, that however surprised, you know, that's still what we think that type of regulation was appropriate.

I mean, what to think about this, quote, doctrine or quote, law? I mean, do you remember when we previewed this case, we talked about the kind of the vibeness of the entire oral argument, which was just like, the chief seemed to be saying, like, here's what you do. Close your eyes, think about an agency, think about the first thing that pops into your mind, and is the agency trying to do something that aligns with that. That's kind of what he's saying here, right? Because he goes on to say, you know, we might not expect the Department of Homeland Security to make trade or foreign policy, even though doing so could decrease illegal immigration. No one would consider generation shifting a tool in OSHA's toolbox. So he's basically naming agencies and naming activities

and saying the vibes of those agencies are not the vibes of doing those things. And it's just like, shouldn't you just be looking at a statute and asking whether the statute permits the agency to do what the agency is claiming it has the power to do here? It is the most freewheeling, free association analysis that was in the oral argument, and it is absolutely present in the opinion. And it is like, it's lawless. It feels really lawless. Statutes are for suckers, Kate. Vibes only. So maybe just a few quick observations about this. I do want to get to the Kagan dissent. This is, I guess, the narrow and limiting approach to just reviving the non-delegation entirely. But it's unclear how narrow it is or how limiting it

is, given that it's completely judge-empowering and just invites courts to ask, like, do I think this is kind of a big deal or not? And in the hands of this court, it's basically a Republican Party veto over, like, regulations created by a Democratic administration. By definition, because it is structured to invalidate anything that is big and bold and will have significant impact, it is a fundamentally deregulatory doctrine that's going to be wielded by this conservative supermajority court. And anytime you have a democratic administration that wants to do big, bold, maybe novel, to quote Yulia, policymaking, that's going to just run squarely into the major questions doctrine

because the court just doesn't want to let agencies do anything. That's, I think, what this boils down to. I think that that's exactly right. And, you know, the court says, well, this is a major regulation because we conclude like this provision is ancillary. Not clear why that is correct. It says prior to 2015, there hadn't been generation shifting rules. Note, that's not quite right either. But the court says the 2005 Bush administration regulation, you know, was controversial and a court never signed off on its validity. And it just claims this is a fundamental revision. Again, more normative hand-waving. We got an epic Kagan dissent that kind of reads, if you guys are going to let the planet burn, then I will fucking let you guys on fire.

The opening of the dissent notes how the court has obstructed climate regulation, saying the court has obstructed EPA's efforts from the beginning, noting the stay of the Clean Power Plan. She then explains why this major questions doctrine will kneecap agencies in the future, saying, we know that Congress delegates major decisions to agencies all the time and often via broadly framed provision. The court appoints itself instead of Congress or the expert agency, the decision maker on climate policy. I cannot think of many things more frightening. And to your kind of light this on fire point, I feel like what she is saying here when she says, you know, giving the court this authority is really scary. She's basically telling us, like, I know these fools in the majority, like we are in serious danger, Earth, you are in serious danger. Like, it's not particularly veiled, I don't think. No. And like the implications of the major question doctrine are clear from this

term, you know, this term, the court has shut down now, three administrative policies on the ground that they're major on the theory that Congress must predict what a future court will say is major. And Justice Kagan also very memorably revisits her famous, we are all textualists now line that she gave in a lecture at Harvard Law School. So she writes, some years ago, I remarked that we're all textualists now. It seems I was wrong. The current court is textualist only when being so suits it. When that method would frustrate barter goals, special canons like the major questions doctrine magically appear as get out of text free cards. The anti-administrative state stance shows up in the majority opinion.

I mean, I love this. I think she is really calling to mind, you know, something that former White House counsel Don McGahn made explicit, that the Trump administration's judicial appointments were the other side of the coin to their deregulatory agenda. And that is paying off dividends time and time again. Yeah. We should briefly mention the Gorsuch concurrence. So he's joined by Alito. It's as obnoxious as you would predict. It's like, he's kind of like, I'm cool with the major question doctrine because it is basically non-delegation. And it struck me as a smug and kind of unnecessary victory lap in which Gorsuch just kind of like- Smug and unnecessary,

Kate. I never. I never. It's totally redundant to even like say a Gorsuch opinion and smog and unnecessary. But he sort of admits that he made all of this up. So he has been like this key driver of the major questions doctrine. And he kind of wants to remind us of that and basically says we can make these rules up to enforce constitutional principles, just the ones we like, like the non-delegation doctrine, and therefore it is fine and not judicial willfulness and lawlessness. But obviously it's a pretty unconvincing exercise. So the concurrence also evinces a trend that Melissa, our co-host, has really been on the

forefront of pointing out, something we've called CRT SCOTUS, where the court seemingly evokes a concern for racial justice and racial equity in order to advance its conservative agenda. So in a footnote in the Gorsuch concurrence, Justice Gorsuch notes how Woodrow Wilson was kind of a leading proponent of administrative expert agencies. And he then goes on to note that Woodrow Wilson denounced immigrants from the south of Italy and men of the meaner sort out of Hungary and Poland, again, associating the project of administrative governance with racism. With Wilson having been a racist, which he was. And it's just like an amazing

stretch. It doesn't even really try to connect, you know, apart from at the very highest level of generality, the questions in this case to Wilson. And yet it does seem like a pretty ominous signal of these kind of very, very serious efforts that are underfoot to discredit writ large the administrative state. And I think that, yes, exactly, as you suggested, that Melissa has identified very broadly, including in this new piece in Mother Jones this week, just the broad array of legal questions on which Thomas initially, but obviously Gorsuch and Alito in this opinion, are joining him, have pressed this racial justice arguments to defend extremely conservative and here deregulatory objectives. So I think this is important evidence that that is very much

continuing an important trend. So we're going to have lots more to say about this case in our term wrap up, which is going to drop next week and probably more over the summer. But that's all we have time for today. So we're going to leave it there. The Supreme Court's attack on environmental protections has dramatically weakened the power of federal agencies to fight climate change and regulate greenhouse gas emissions. On this week's Hot Take, climate essayists Mary Anais Hegler and Amy Westervelt provide a history of legislation against climate policy and what it means for the worsening climate crisis.

And I join them to discuss the Supreme Court decision. Listen to new episodes of Hot Take every Friday, wherever you get your podcasts. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. Digital support from Amelia Montooth, and summer intern support from Anushka Chander.