“We are on alert,” Rep. Kathy Castor (D-Fla.), who chairs the House Select Committee on the Climate Crisis, told me. Anti-regulation conservatives, she added, “haven’t been successful in legislation, but they have succeeded in packing the court.”
The upshot: Congress will have to find new ways to “be specific in reaffirming the authority to regulate.”
This is exactly what Congress did in provisions of the Inflation Reduction Act that initially received little attention. The bill’s headline climate change provisions involved a variety of subsidies and credits for clean energy. But as Lisa Friedman reported in the New York Times, the bill also responded directly to the climate ruling.
The court majority claimed that Congress had never given the agency explicit authority for such actions. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Chief Justice John G. Roberts Jr. wrote.
Justice Elena Kagan was scathing in her dissent. “The Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions,” she wrote. “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.”
Kagan added: “Whatever else this Court may know about, it does not have a clue about how to address climate change.”
Democrats in Congress plainly agree. While rejecting the court’s view that the legislative branch had not been specific enough in granting the EPA authority around certain climate issues, they used the Inflation Reduction Act to make their intentions absolutely clear.
The new law, as Friedman reported, amended the Clean Air Act “to define the carbon dioxide produced by the burning of fossil fuels as an ‘air pollutant,’” and explicitly gave the EPA authority “to regulate greenhouse gases.”
“The Clean Air Act was written to be very flexible,” Rep. Frank Pallone Jr. (D-N.J.), chair of the House Energy and Commerce Committee, said in an interview. “The EPA has the authority and the obligation to protect public health, and as new sources of pollution arose, the EPA could act.”
As Pallone suggests, years of court precedent accepted Congress’s need to delegate considerable authority to regulators who have expertise and need to respond to changing circumstances.
But right-wing judges and scholars are pursuing a variety of strategies to limit federal regulatory authority. One path, reflected in the climate case, would limit Congress’s ability to delegate by insisting that regulatory laws need to be far more specific. Some propose repudiating what is known as “the Chevron doctrine,” named after a 1984 Supreme Court decision, which calls for judicial deference to the regulators’ interpretations of ambiguous statutes if they are deemed reasonable. And more radical critics of the administrative state, including Justice Clarence Thomas, have challenged delegation altogether as unconstitutional.
“This whole idea is nonsense,” Pallone said. “It’s a right-wing court saying that these…
Read More: Opinion | Greenhouse gases are pollutants. The Inflation Reduction Act says so.
