Supremes Kayo Climate Change Regulation: West Virginia v. EPA

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The Supreme Court issued another blockbuster 6-3 opinion last Thursday in West Virginia v. Environmental Protection Agency (EPA) in which it ruled that the Clean Air Act didn’t provide  EPA expansive powers to regulate  carbon emissions.

The decision, written by Chief Justice John Roberts, re-establishes his shaky control over the Court – which had last week in the Dobbs case overturned the longstanding Roe v. Wade precedent, despite his quibbles and wish to allow that precedent to stand. The U.S. Chamber of Commerce had promoted his nomination to the Supreme Court and this latest decision fulfils the Chamber’s longstanding priority of gutting federal regulatory authority (see David Sirota’s take in Jacobin, Chief Justice John Roberts Is Carrying Out Corporate America’s Long-Term Plan Perfectly.)

The legal implications of the latest EPA ruling might in future have more far-reaching implications, hampering regulatory authority throughout the executive branch. I’ll not discuss those possible issues further here.

I’ll instead confine myself to two immediate implications of the latest decision, the first, the impact on U.S. global leadership and the second, the limitations the decision imposes on the ability of U.S. states to regulate, now that the feds cannot – or may not- do so in the absence of further congressional action.

But before  I turn to those issues, permit me an aside. I note once again the continuing consequences of the Tump administration’s fierce focus on filling vacant Article III judgeships – e.g. those offering lifetime tenure –  as I posted about in real time multiple times. Trump et al moved to seat judges who would implement its regulatory agenda – and not just the three headliners he confirmed to join the Supremes, but also at lower federal district and appeals courts. Contrast that record with that of the hapless Democrats, who other than flooding my in-box with fund-raising appeals – especially post-Dobbs – still don’t seem to grasp the importance of  confirming congenial judges quickly and efficiently.  Instead and incredibly, Biden seems recently to have cut a deal with Mitch McConnell to seat a judge whose past record contradicts the Democratic pro-choice agenda (ee  ‘Indefensible’: Outrage as New Reporting Shines Light on Biden Deal With McConnell)

I also note that the current small c ‘conservative‘ Supreme Court relied in its decision on a relatively novel legal theory  – the ‘major questions’ doctrine:  that in certain extraordinary cases, Congress must provide more explicit authority for agency rule-making.  In the West Virginia case, the Court held that the Clean Air Act did not provide necessary authority to undertake the power plant regulation at issue. Thus somewhat ironically, the Court struck down agency rule-making, based on a relatively recent legal theory, putatively in line with originalist Constitutional thought.

Even more outrageously, the Court didn’t actually have, at least by my reading – and consistent with Justice Elena Kagan’s dissent – a live case or controversy it needed to weigh in on. The EPA’s 2015 Clean Power Plan rule had been put on hold in 2016 by the Court in response to a challenge by several states and private parties, and in 2019, the Trump EPA replaced that earlier EPA rule with the Affordable Clean Energy Rule. Both of these plans were vacated by a 2019 decision by the United States Court of Appeals for the D.C. Circuit, which had sent the case back to the EPA for additional proceedings – yet to be concluded (see SCOTUS blog,Supreme Court curtails EPA’s authority to fight climate change) for further detail). So the Court could have sent this case back to the EPA to sort out the mess – and perhaps enact  a viable climate change policy – before issuing any decision.

Not Agreement Capable

What are the implications of the latest Supreme Court decision at the global level?  There,  the Biden administration has well and truly not only dropped – but lost –  the ball. No one seems to be paying necessary attention to the climate change issue.  Instead, the focus on Ukraine – and economic sanctions –  has left climate change considerations to the side. Thus leaving the planet in peril. I only point out here that if, and that’s a very big IF, a sane and sensible administration were to step in, and attempt to implement a serious climate change agenda, at both domestic and international levels, this latest decision by the Supremes would prove to be a major impediment to such further action. Thus adding to the increasingly widespread perception that the U.S. is incapable of entering into any agreement – and following through on any commitments it might make therein.

Climate Change Regulation at the State Level

The U.S Supreme Court is now clearly implementing the laissez faire regulatory agenda of the Republican Party. But given the U.S. has a federal system, with both states and the federal government having overlapping and separate regulatory authority, perhaps the climate change regulatory situation is not as dire as it seems? California and New York, for example, have implemented more robust and pro-active climate change regulations. So perhaps  other states might also step in to regulate where the feds fear to tread, at least within their borders?

Alas, there’s scant possibility that collective state actions might mitigate the impact of this latest Supreme Court decision. Per law professor Evan Zoldan writing in  the Hill, The fragility of state regulation after West Virginia v. EPA:

The impact of the court’s ruling on federal agency authority and power cannot be overstated. But an equally important consequence, albeit one that has received far less attention, is the transformative effect the ruling could have on state regulatory programs. Because state regulatory authority is often tethered to standards created by Congress or federal agencies, the diminution of federal regulatory authority promises to destabilize state regulation as well. Countless state regulatory programs can be considered fragile because they regulate by incorporating federal statutes or regulations into state law. If these federal schemes are read exceedingly narrowly, as the court’s opinion heralds, then the state regulatory programs tied to them will be imperiled as well.

Consider the relationship between state regulatory programs and Section 111 of the Clean Air Act, the provision read narrowly in West Virginia v. EPA. An examination of state air quality standards reveals that most states specifically incorporate by reference parts of Section 111 into their own statutes and regulations. Some states incorporate federal law directly, providing that the EPA’s Section 111 determinations are part of state law. Other states incorporate the EPA’s Section 111 determinations as a benchmark for state law, providing that state air quality standards may not be less stringent than those promulgated by the EPA. Still other states require their environmental agencies to promulgate rules similar to federal standards made pursuant to Section 111. And some states even provide that related state regulation is no longer effective if federal rules made pursuant to Section 111 are invalidated.

Because so many state statutes and regulations depend on the validity of Section 111 and the regulations promulgated under it, the court’s opinion in West Virginia v. EPA not only drastically limits federal authority, it also has the effect of imperiling the many state regulatory programs that depend on federal standards for their existence.

And, of course, Section 111 is just an example. Countless state regulatory programs are tethered to federally created standards, ranging in subject matter from food and drugs to banking to labor, among many others.

As a result, the court’s opinion strengthening the major questions doctrine threatens to leave numerous fields underregulated not only at the federal level, but also at the state level.

So it goes.

Print Friendly, PDF & Email


  1. Sardonia

    Remember in 2008 when Obama said during the primaries that he wanted to be a “transformational President – like Reagan” – a cute dig at the Clintons?

    He wasn’t very transformational, was he? But look who was!

    1. drumlin woodchuckles

      He transformed opportunity into disaster. Look at what he did do and support and for whom he did it and supported it.

      He entrenched and permanentised the oligarchy, in return for the rich rewards he is collecting now that he is out of office.

      1. gabon 45

        not really – this was the blockbuster, which is why the attacks on him are never ending and the fear he creates is palpable:

        Executive Order 13957 of October 21, 2020

        Creating Schedule F in the Excepted Service

        1. drumlin woodchuckles

          You raise a good point. Trump made some advances towards the Deconstruction of the Administrative State. The state that forces drug companies to put aspirin in the bottle if it says aspirin on the label, and ideally forces them to keep arsenic out of the bottle if it says aspirin on the label. That’s the Administrative State that Steve Bannon and all the Bannonons want deconstructed.

          America doesn’t work anymore. Its an idea whose time is gone. It was nice while it lasted.

          Could a consortium of contiguous border-sharing Blue Minded states all write and adopt their own regulatory standards for things and stuff without referrence to Federal Standards? If they could, then they would be able to make their own laws, rules and regs based upon their own separately-arrived-at-standards without someone jumping up and claiming their law was Federal Standard based, therefor they can’t have their law.

          If it ” could”, then what is stopping it? A delusional belief that the Blue People will somehow ” get their country back”? They won’t. Its gone. That garbage barge has done sailed and sunk. So they can either get over it and design their own Separate Survival, or they can die crying themselves to sleep every night over what was.

          1. flora

            The Dem estab for 40 years certainly conditions us to think that way. It gets them off the hook for having to do something effective for their voters. Concrete material benefits, etc. Instead, we get do-nothing Dem pols. They aren’t “hapless”, they just play the part on TV. They and their Wall St. donors make out like bandits. Watch how vigorously they opposed New Deal type Dem candidates for office, often prefering to lose to a COP candidate. / ;)

            1. drumlin woodchuckles

              Well, that’s a good point, too.

              The ClintoBiden Sh!tobamacrat elites certainly designed, engineered and built the vacuum into which Bush Junior and then Trump were sucked. And they did it on purpose.

              1. Jerri-Lynn Scofield Post author

                The Republicans tell you what they plan to do and then they do it. None of this ‘fight for’ nonsense.

                1. drumlin woodchuckles

                  Well, those who think a new and different party-movement is needed as a social and power weapon for planning to do something and then doing it should feel free to go ahead and do it. If I see such a thing emerging, and it looks sincere ( NOT like the Green Party); I will join it at least part of the time and at some levels.

                  Those people who think the Democratic Party can still be declintaminated with the right Stalinist disinfection approach should go ahead and try that.

                  I think the most viable approach going forward is for a Separate Survival Party-Movement to get started up in a few contiguous states where enough people agree with that approach to get such an approach started and then made visible. Ideally, such a contiguous block of states would make itself stealth-ready to stealth-separate from the rest of the mess when appropriate.

    2. tawal

      When Raygun is your hero, are you really a “Democrat”?
      I finally saw through him, when he started pinning that Amerikun flag pin on his lapel.
      When he threw is pastor under the “back” of the bus, my instincts were confirmed.
      He made me vote Green for the first time.
      My instincts were right on…sadly.

  2. barny

    It feels like the republicans felt their Christian base slipping away after so many actions against them under trump and no outcomes, which came to a point when they started to hear that pence (their man in the administration) were planned to be hung. So the republicans finally had to pull the trigger on the supreme court power they had been building for a generation and now that it is activated they have to use it for everything they can before they lose it. I never expected much from Biden like a green new deal or healthcare but I did and still do hope for some behind the scenes tweaking and adjusting to things like monopoly power and voting rights and all the other ways corporations are perverting democracy.

    1. Carolinian

      Or alternately the Federalist Society has been corporatizing the courts for decades and this is nothing new. Perhaps some of the outrage over Dobbs could be tranferred to this much more compelling example of judicial damage to our society with Citizens United a prime example. One might even claim that the Repubs were only using Roe to get the pro corporate judges that they wanted.

      1. drumlin woodchuckles

        That leaves unfaced the parallel fact that the Federalist Society was using the Republican Party’s use of Roe to get the Catholic Sharia Law judges which the Federalist Society wanted.

        Two or more power-groups can fellow-travel in the same direction for a while to get to their two adjacent goals.

        1. Carolinian

          The long ago argument of Michael Kinsley and some others was that it was Roe itself that fueled the reactionary trend that followed.

          1. drumlin woodchuckles

            Or maybe just lit the match to a bunch of fuel already maturing for the fire.

            There is much to be said for Kinsley’s argument.

            There is also much to be said for the argument that the final DemParty betrayal . . . the GlintoGore Administration’s successful attainment of passage and signage of NAFTA, WTO, MFN for China, etc, that the Republicans spent 12 years teeing up for them . . . recruited tens of millions of more people to the culture reactionary cause. Their material lives were destroyed and reality itself lost any value for them and magical thinking became their only political escape.

            I forget the name of the one-time journalist who made that argument. He was Harvard Divinity School, had been a NY Times reporter, is now very radical . . . but I can’t recall his name. He called these millions of latter-day recruits to the ChristoFascist movement ” Clinton’s Children” and said they would be the Clinton gift to the nation which would keep on giving for decades to come. I have never been able to re-find the article where he wrote that.

  3. Anthony G Stegman

    Fear not. The capitalist pigs dislike regulation-free nearly as much as they dislike regulations per se. There is a middle ground the capitalist pigs seek – enough regulations to hobble competitors, but not enough to hobble themselves. I expect the pigs to be seeking some regulations in the near future. While many think that the capitalist pigs are suicidal, I don’t agree. When they find themselves in duress the pigs will come running to Uncle Sam for relief. In totality, government regulations benefit Big Business more than they stymy them.

  4. Tom Stone

    Just wow.
    Corrupt and evil old men making sure everything will be worse for almost every one..
    It has been an interesting first half of the year and I suspect the second half will be even more lively, enjoy the show while you are here.

    1. Jerri-Lynn Scofield Post author

      Thanks – fat fingers! I fixed that and some other typos when I reread the post this morning.

  5. Solarjay

    And what is even more disappointing to me is that the Dems had to anticipate a range of rulings. They could have passed any number of new laws to specifically address this or had bills ready to go to vote on.
    And just like Roe, nada, not a single action nothing. just vote harder.

    It’s going to be a wipeout in the fall and our environment is going to suffer even more. Preventable snd so sad to see

    1. Jerri-Lynn Scofield Post author

      Agreed. I’m amazed the Dems didn’t have a strong response ready to roll out immediately after Dobbs was announced. The May leak of Alito’s draft opinion provided plenty of notice of exactly what the majority was planning.

      No delay however in getting out those fundraising emails – which continue to flood my inbox.

      1. JTMcPhee

        Hey, they had a strong response all ready to roll — my gmail inbox is flooded with demanding hair on fire fundraising demands. So too with social media. Even AOC, may she ever be exalted, tried to tap me several times. I wonder if the algorithm will decide i am so opposed to its mandate that it stops tagging me as a DemSucker.

        Did Bernie give them access to his mailing list? I get emails to my box with my wife’s name on them, an error that first appeared in Bernie fundraising during his second campaign. She NEVER responds to anything political, so what kind of scraping added her name to my account?

  6. Glossolalia

    Instead, the focus on Ukraine – and economic sanctions – has left climate change considerations to the side.

    The EU is firing up its old coal burning plants, because apparently the only thing worse than a climate catastrophe is Russia.

  7. JTMcPhee

    At what point will we start to see stuff like what is happening in Holland with the farmers strike spreading into the larger economy? I wonder if the Yellow Vests phenomenon in France will somehow translate into the US space. What will be our commensal symbol? Maybe a Red Solo Cup?

    And at what point will the illegitimacy (in terms of consent of the governed) of the SCt become so obvious and painful that some tipping-point quantum of people will remember that the Ct’s rulings depend on willing cooperation or at least nothing worse than sulking observance by the populi? “How many divisions does the Opus Dei Ct have?”

    This latest ruling seems to me to be straight Marbury v. Madison, creating judicial power out of whole cloth in a case where the court, by its own precedents, does not even have a justiciable case or controversy to decide.

    1. Jerri-Lynn Scofield Post author

      An outrageous decision. This EPA opinion and Dobbs made for very depressing reading. And led me to recall a paper I wrote in law school for a seminar taught by Charles Fried, who served as Reagan’s solicitor general from 1985-89. An elegant and thoughtful man; I learned much from him – even though we were on opposite sides of just about every issue. Discussing issues with Fried sharpened my own thinking, even moreso than the seminars I took with Breyer and Tribe. Anyway, the paper’s title: Is Originalism Sensible? (Fried awarded it an A. I’ll leave it to you to guess how I answered that loaded question.) Another inside baseball tidbit: Neil Gorsuch was a student in that same Fried seminar.

      But the Supremes aren’t the only problem. Trump and his minions were very disciplined about filling federal judicial vacancies. I posted about this in real time. Dems don’t accord the same priority to getting their candidates confirmed.

      I think Dems are going to get badly spanked in the mid-terms, and that’ll make it impossible to seat sensible judges. Thereby leaving lots of vacancies for Biden’s successor to fill.

      1. solarjay

        Yes EPA is a bad decision, but its very narrow and it is addressing a part of the clean air act that isn’t being used. I’ve read and listened to a number of very smart people commenting on this, and really while its bad, its not nearly as bad as it could be.

        (I think the court and conservatives have used this session as a trail balloon, to see what the fall out would be. Specifically ROE, the best explanation for the leak is to see what would happen. When it was nothing, nada, zip, they did it. While I don’t think guns and the EPA rulings were contingent on the fallout from ROE, it sets up the next round of rulings that are going to be really bad.)

        Thats right, it is not being used by the Biden admin because it was never implemented, see below.

        PS, yes the lack of any urgency on getting judges seated is terrible. They can’t be this incompetent can they? Seems more like its on purpose, but either way, I’m not sure which is worse.

        1. Jerri-Lynn Scofield Post author

          I agree with you on your last point, I don’t know which is worse. Incompetence or indifference? You be the judge!

          A point I’ve made before and didn’t bring up again: I’d also like to see greater diversity in judicial candidates – but not along IDpol lines. All but one of the current Supremes has a Harvard or Yale law degree. At one time, there were Stanford-educated justices – Rehnquist, O’Connor – but not now. (Amy Coney Barrett attended Notre Dame.) There are lots of law schools in this country. How about more class and regional diversity on the Court?

          Also, I’d like to see greater diversity in work experience – more public interest lawyers, plaintiffs’ attorneys, criminal defense attorneys, to balance out all those prosecutors, law professors, and partners from white shoe firms. And a little more humanity. One of the first NC posts I wrote was about sitting in the audience at an event in Cape Town; one of the judges on South Africa’s top court was on the podium. Under the apartheid system, he’d done time, before he ever became a lawyer. That experience no doubt shaped his understanding of legal issues.

          Now, in the U.S., you have to be super duper goody two shoes to have a prayer of being confirmed. That teen age parking ticket? Arrest at a peaceful political protest? Conviction for possession of weed: NO SUPREME COURT FOR YOU!

          And how about ever voicing any controversial opinions? Even if you’re a law professor and it’s your job to say something interesting? Take Elena Kagan, for example, IIRC. Despite having risen to be dean of Harvard’s law school, she had virtually no publication record to parse when she was nominated to the Supremes. How was that possible for someone who’d received tenure at Harvard? Obviously, she was groomed to be a justice, and having any record might have proven to be an impediment to that goal; hence, there was no publication record to speak of.

          I find myself agreeing with (retired) Judge Richard Posner, one of the godfathers of the law and economics movement – and have posted accordingly – that Supreme Court justices need not even be lawyers. Once they decide on what position they’ll take, they have talented clerks who can dot the legal is and cross the ts. Constitutional law isn’t conceptually difficult. Most cases turn on a conflict between bedrock principles, and deciding which one should prevail does force a difficult, and often highly political, judgement call. But it requires no herculean logical feat to understand the concepts at issue.

          For a spot on a lower court, I think legal training is necessary. To preside in a trial, for example. But for the Supremes, not strictly speaking necessary.

  8. Rip Van Winkle

    Does this mean that those automobile tailpipe exhaust test requirements in “EPA Non-Attainment Zones” are unconstitutional?

Comments are closed.