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Justices gut federal power to regulate coal plant emissions

The Supreme Court hobbled executive power to act on climate change, complicating the government's expected rollout of new rules for power plants.

WASHINGTON (CN) — President Biden's climate agenda got chipped away by the Supreme Court on Friday in a 6-3 ruling

Writing for the conservative supermajority, Chief Justice John Roberts said the power to regulate carbon dioxide emissions lies with Congress, not the Environmental Protection Agency. 

“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,’” the Bush appointee wrote. “But it is not plausible that Congress gave 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.” 

Justice Elena Kagan headed a dissent by the three Democrat-appointed justices. 

“Today, the Court strips the Environmental Protection Agency of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,’” the Obama appointee wrote.  

President Joe Biden called the ruling devastating and said it aims to move the country backward.

"We cannot and will not ignore the danger to public health and existential threat the climate crisis poses," Biden said, adding that he is directing the Department of Justice and other agencies to review how the country can continue to decrease harmful pollution that caused and continues to exacerbate global warming.

"Our fight against climate change must carry forward, and it will," the president continued.

The case stems from the Clean Power Plan adopted by the EPA in 2015 to regulate carbon dioxide emissions from power plants. Litigation erupted after former President Donald Trump withdrew the plan, with the D.C. Circuit later vacating the repeal and the EPA offering a replacement solution known as the ACE rule, short for Affordable Clean Energy. 

Today, the EPA says it no longer wants to use either the Clean Power Plan or ACE rule. Several Republican-led states and coal companies nevertheless urged high court intervention, saying that the EPA lacked the authority in the first place to create carbon regulations that would have outsized political and economic impacts. Environmental advocates called it misguided meanwhile for the court to consider curbing the government’s authority on climate change regulation at what is a critical moment in the fight. 

Kagan's dissent meanwhile is replete with data on climate change and its consequences. She says the EPA was charged with addressing the harms of a warming planet, which includes the regulation of fossil-fuel-fired power plants, but that the court has obstructed the government’s ability to do so. 

“The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering,” Kagan wrote. “That new rule will be subject anyway to immediate, pre-enforcement judicial review. But this Court could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change.” 

Thursday's outcome appeared unavoidable after the justices heard the case in February and showed their lack of a consensus on the major questions doctrine — a rule that the conservative majority has used to curb administrative authority not explicitly laid out by Congress. 

Agencies have largely enjoyed deference on their interpretation of statutes where otherwise not decreed by Congress since the court's 1984 decision in Chevron USA Inc. v. National Resources Defense Council Inc. The exception to that rule is if an agency’s actions are so broad they go beyond its authority. Earlier this term, the court wielded this doctrine to throw out the federal vaccine-or-test mandate for large private employers. 

On the issue of regulating power plant emissions, climate scientists warned the justices in an amicus brief not to limit the government’s ability to respond to climate change. They predict the loss of thousands of lives, plus severe economic and environmental costs, if the government is unable to take action. 

For Roberts, however, the government’s view of EPA authority is not only unprecedented but a fundamental revision of the statutes before it. 

“Under its newly ‘discover[ed]’ authority ... EPA can demand much greater reductions in emissions based on a very different kind of policy judgment: that it would be ‘best’ if coal made up a much smaller share of national electricity generation,” Roberts wrote. “And on this view of EPA’s authority, it could go further, perhaps forcing coal plants to ‘shift’ away virtually all of their generation — i.e., to cease making power altogether.”  

Roberts lays out a number of cases in which the court curbed government action for exceeding the scope prescribed by Congress. Where the agencies argued that it was “common sense” that Congress would have delegated such powers, Roberts said agencies must have clear congressional authorization for the authority they claim. 

“Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line,’” Roberts wrote. “We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’”

The label of “major questions doctrine,” Roberts said, addressed the recurring problem of agencies abusing their power by going beyond Congress’ charge. This case qualifies under that label, according to the majority ruling, because the EPA recognized a “newfound power” within the “vague language” of a statute. 

Kagan once remarked in a speech at Harvard that “we’re all textualists now.” She said Thursday her statement was wrong and that the majority harbors an “anti-administrative-state stance.” 

“The current Court is textualist only when being so suits it,” Kagan wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.” 

The Center for Popular Democracy Action called Thursday's ruling a blow to climate justice that will hurt already vulnerable communities.

“Failure to protect our environment and invest in clean energy sources has direct implications for our communities, especially for people of color, poor people, and the disabled,” Julio López Varona, the group's chief of campaigns, said in a statement. “Today’s decision will increase the environmental racism and injustice already plaguing our most vulnerable communities.”  

West Virginia Solicitor General Lindsay See and the Department of Justice did not immediately respond to requests for comment on the ruling. 

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