This decision simply told the EPA that it needs specific authorization to engage in a sweeping restructuring of the country’s power generation mix to address climate change, and can’t rely on its existing authority to tell coal plants to install particulate scrubbers.
This is a huge problem warranting an apoplectic reaction because everyone knows Congress won’t do that. In fact, voters are about to hand Congress back over to the GOP because they’re mad about paying $5/gallon for gas. The vast majority of Americans want to address climate change, but won’t pay even $10/month extra on their electric bill to do so: https://www.cato.org/blog/68-americans-wouldnt-pay-10-month-.... Having Congress vote to raise everyone’s energy costs is a total non-starter.
The unstated subtext to all this is that, to address climate change, we need to bypass democracy and impose sweeping changes through unelected bureaucrats and boring administrative proceedings nobody pays attention to. And it’s quite revealing who thinks that’s a good idea and who thinks it’s a bad idea.
That is silly hyperbolic overreaction. The court literally upheld the EPA regulating greenhouse gasses at the point of creation. It upheld the specific regulations how coal was burned. All it said was the EPA wasn't empowered to move into grid management schemes. If congress wants to grant them that power, it can.
> Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible "solution to the crisis of the day." But it is not plausible that Congress gave the EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.
It seems pretty clear that Congress does have the authority to delegate, but that the Court ruled that Congress didn't intend to do so. This ruling places the ball firmly in Congress's court, it doesn't rule that Congress cannot act.
This is nonsense. Congress hasn't abdicated anything, they've delegated it, and they retain the power to overrule the EPA, which means that voters have the power to elect representatives to do just that if the EPA made a bad ruling.
And in this particular case, this isn't even remotely a bad ruling. The inability for markets to properly price in their negative externalities is the reason for our current looming crisis, and making up for the failures of markets by properly imposing those externalities is one of the most important roles of government.
Agreed. This isn't about climate change, it's about proper procedure as the Constitution sets it up. The EPA went past its mandated purposes as set up by law. Congress needs to pass a new law to give it this power. If it can't, that's their problem. This was a good decision as far too much power has been given to the administrative state to basically make up laws.
The clean air act clearly gives the EPA power to regulate emissions of pollutants that are a threat to welfare. It's not really arguable that that coal power plants fall into that or that greenhouse gases are pollutants that are a threat to welfare. This is a ridiculous decision that flies in the face of the law, and their justification that somehow this is too much and that Congress needed to specify that they had explicit authority over power plants because that is "too significant" is patently ridiculous. Congress gave them a mandate over pollutants, I don't see how that is possibly an overreach. The position that Congress can't put an agency in power of regulating emissions because that's too general is ridiculous.
This is a silly decision. I don't respect the reasoning at all.
If Republicans want to abolish the EPA, all they have to do is pass a law. They could do it with a simple majority in each House if they abolish the filibuster (which itself requires only a simple majority).
There is no meaningful loss of democratic control here. Congress can do whatever it wants, with or without the EPA.
This is just the highest court in the land acting as toadies for the fossil fuel industry, legislating from the bench on a flimsy right wing legal theory.
That's not it at all. All parties agreed that Congress passed a law allowing the EPA to regular carbon emissions by setting emission limits on different types of power plants based on the best current technology available for emission reduction. The disagreement is whether that allows the EPA to set emission limits which are impossible to achieve, with the goal of forcing fossil fuel plants to shut down or subsidize renewable sources.
This ruling has nothing to do with whether CO2 is a “pollutant.”
Congress cannot delegate a sector to an agency, because agencies are executive branch entities and the executive branch can’t make laws. Executive branch agencies operate under the fiction that they are merely enforcing laws Congress has created. That’s why Congress can’t delegate agencies the power to make rules with the force of law in an entire sector. It has to be more specific, so that the agency is simply “filling in the details.”
And the Clean Air Act is specific. It allows the EPA to fill in the details about pollutants and emissions levels. But it doesn’t give the EPA blanket authority to do whatever is necessary to achieve those targets. It has a detailed menu of measures, such as requiring particular types of emissions control technology on individual plants.
In this case the EPA told the entire energy sector to switch away from coal to renewables. That wasn’t on the list of measures available under the Clean Air Act.
Well the fix here is for Congress to pass a specific law empowering the EPA with explicit authority.
If something like that can't make it through congress then it isn't democratic, and the task then becomes one of convincing the other side. I've the had the anti-coal conversation with plenty of conservatives and they were all open to my point of view.
Ultimately this court's decision is a win for democracy, even if it is a (temporary) step back for fighting climate change.
Have you read the decision? I haven't read the whole thing, but it consistently talks about what Congress intended to do. Here's a relevant extract, in which the EPA itself acknowledges that to the extent Congress expressed intent, it went against the EPA's rulemaking:
> EPA argued that under the major questions of doctrine, a clear statement was necessary to conclude that Congress intended to delegate authority "of this breadth to regulate a fundamental sector of the economy." It found none. "Indeed," it concluded, given the text and structure of the statute, "Congress has directly spoken to this precise question and precluded" the use of measures such as generation shifting.
The problem here is that what most people here wish Congress intended to do isn't what Congress actually intended to do, because they couldn't build the political will to do it. I'm sympathetic to that view, but it's not the Supreme Court's job to fix Congress's deadlock.
'WASHINGTON—The Supreme Court on Thursday curtailed the Environmental Protection Agency’s powers to restrict greenhouse-gas emissions from power plants, in a decision that could limit the authority of government agencies to address major policy questions without congressional approval.
Elaborating on earlier decisions, the high court said federal agencies need explicit authorization from Congress to decide issues of major economic and political significance, drawing on a principle known as the “major questions doctrine.”
In his decision for the 6-3 majority, Chief Justice John Roberts said Congress never gave the EPA the authority to change the methods a power plant uses—regulations known as “generation shifting” requirements.
Chief Justice Roberts said that forcing a nationwide transition away from coal may be a “sensible” idea, but the EPA cannot do so without a clear authority from Congress.
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” the chief justice wrote, adding that the “EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute.”'
I agree and its frustrating to see this crowd continually push the point that congress needs to grant explicit powers to the EPA when they already know that every single Republican politician is against moving the needle on climate change. This case was filed by 19 Republican lead states which constitute 44% of emissions in the US and is a multiyear effort by conservative climate change deniers[1] Any significant law will simply not pass the senate because the only thing senate Republicans are apparently good at is blocking progress. So this double play on the part of right leaning commentators is really in bad faith.
The headlines aren’t entirely wrong. If you look at the conservative majority opinions, you’ll find that indeed, it’s about the relevant legal issues, ie. what the law actually says. On the other hand, if you read liberal dissents, they’re mostly about what they think appropriate policy should be.
In this particular case, the majority opinion starts off by quoting the relevant statute and analyzing its meaning, whereas the dissent starts off by saying (quoting) that “climate change is the most pressing environmental challenge of our time”, and continues with a long litany of how bad it is.
Really, I find the entire thing to be rather crazy: if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this. At the same time, the EPA’s argument in this case was that the Congress has already delegated this to EPA. Considering that the Congress won’t pass a law confirming that yes, it did in fact delegate authority to execute these particular regulations (which, again, would render the entire SCOTUS decision irrelevant), I find the EPA’s argument of rather dubious quality.
> Congress can still pass a law empowering EPA to regulate greenhouse gas emissions.
Congress gave the EPA broad discretion that it could have revoked -- using your argument -- at any moment. This issue has been bouncing around for over a decade, and Congress has systematically declined to do so.
No. No. Wrong. The Supreme Court's mandate is to be the Supreme Court, not to be the solve-the-current-crisis fixer. I want the planet not to fry and to still have a constitutional democracy at the end of that process.
The problem is that people want to handle this "on the cheap", by executive order, rather than by the actual existing mechanism, which is through Congress. Yes, Congress created the EPA. They didn't give them the authority to regulate CO2, though. That was an overreach when the executive order came out, and that reality finally caught up legally.
You want to regulate CO2? Then do it the right way - by having Congress pass a bill that grants that power to the EPA. That's the difference between rule of law and rule of the president.
You say those states have too much power? No they don't. There's only 18 of them. That's only 36 senators. They don't have a majority of the House, either. So go do it the way it should have been done from the beginning, instead of trying to get away with using a lazy back door.
[Edit: Reading other posts here, the issue may not have been CO2 emission, but rather management of the electrical grid. I still think that CO2 was a massive over-reach when the EPA started regulating that. It was almost certainly beyond the scope that Congress conceived of when they created the EPA.]
> Doesn't requiring operators of coal plants to produce less electricity have the effect of reducing emissions from power plants a task that was given to the EPA.
Sure, along with other undesirable effects. But just as it is a mistake to decide what authority they have based on just their name, it would also be a mistake to do so based on just a one–sentence summary. We really should be quoting out of the enabling legislation.
Suffice to say that this legislation is long and complex, but it specifically gives the EPA the authority to mandate design improvements to new power plants (prior to construction) so that they will operate at the best possible efficiency, and also the authority to mandate the installation of new systems to reduce the pollution put out by both existing plants and new ones. This has historically been things like scrubbers to remove pollutants from the waste stream. Think of new hardware devices that you can add to a plant or a factory that reduce the pollution while maintaining their function.
The EPA tried to argue that they had devised a “system” under the meaning of the law that allowed them to shift power generation from coal to gas or renewable power. The Court pointed out that this would gut the word of all useful meaning, and that it would give the EPA the power to unilaterally decide the entire industrial policy of the country. They would be able to use the same language to simply ban almost anything they wanted, and it’s pretty clear that Congress never intended that. The EPA could use that new authority to reduce pollution by banning virtually all industrial activity, causing it all to be done in other countries, for example.
There is another interesting aspect of the enabling legislation. It requires the EPA to investigate multiple systems that achieve the goal of reducing some specific pollutant from some specific source (such as soot from a power plant or whatever), then to determine how much reduction the best of those systems would achieve. Then instead of mandating that everyone has to install that specific system, they are allowed to mandate that everyone must achieve the same reduction by some means. This gives the operators a chance to beat the EPA on either cost or performance, and avoids forced mistakes. If the EPA accidentally selects the second–best system rather than the best, nobody is forced to use a sub–par means of reducing the pollutant.
However, in the case of the EPA’s new generating–shifting “system”, everybody would be required to participate in the same way for it to work. The opinion states: “By contrast, and by design, there is no control a coal plant operator can deploy to attain the emissions limits established by the Clean Power Plan.”
Congress already has the option of overriding/veto any EPA adopted regulation. It has never used that power to remove regulation of CO2. This is not a win for democracy -- quite the opposite.
Carbon dioxide was not considered a pollutant when the law was passed, so congress should specifically authorize such a significant expansion of the EPA authority. Rule by executive fiat is never wise, and if the case were clear cut on this matter, it would not be so hard to get congress to act. There isn't and never was democratic consensus on this topic, and people who support it need to convince people who do not before it can become public policy.
That's a total non sequitur. Have you read the Supreme Court decision in West Virginia v. Environmental Protection Agency (EPA)? It wasn't based on opposition to climate change legislation. The actual issue was a lack of legislation. The EPA clearly exceeded their statutory authority. We need Congress to pass real climate change legislation and stop the administrative state from sneaking things in through the back door.
This is a huge problem warranting an apoplectic reaction because everyone knows Congress won’t do that. In fact, voters are about to hand Congress back over to the GOP because they’re mad about paying $5/gallon for gas. The vast majority of Americans want to address climate change, but won’t pay even $10/month extra on their electric bill to do so: https://www.cato.org/blog/68-americans-wouldnt-pay-10-month-.... Having Congress vote to raise everyone’s energy costs is a total non-starter.
The unstated subtext to all this is that, to address climate change, we need to bypass democracy and impose sweeping changes through unelected bureaucrats and boring administrative proceedings nobody pays attention to. And it’s quite revealing who thinks that’s a good idea and who thinks it’s a bad idea.
reply