Editorials, Opinion

The Supreme Court cripples the EPA

If the rest of the nation didn’t think highly of West Virginia before, they certainly won’t now. 

Because, the Supreme Court sided with Attorney General Patrick Morrisey in West Virginia v. Environmental Protection Agency. The EPA now has limited power to, oh, you know, protect the environment.

The specific question at hand was whether the EPA, under a specific provision of the Clean Air Act, could issue “significant” rules regarding the “best system for emissions reduction,” in this case by setting carbon dioxide limits in such a way as to encourage energy production to transition away from coal toward cleaner sources, such as natural gas, wind and solar.

The court’s majority opinion said no. But it said “no” in such a way that the EPA and other federal agencies may see their regulatory authority severely curbed.

For context, we have to jump back to 1984 (the year, not the book) when the Supreme Court decided Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. The ruling created a two-step framework for deciding if a federal agency had the power to do something. (But we’re learning the current court doesn’t have the patience or attention span to consider more than one step.)

The court looks at whether Congress has “delegated authority to the agency generally to make rules carrying the force of law,” which includes “an agency’s power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent,” and if the agency issued its policy or rule in good faith that Congress had delegated that power.

Step one: The court asks if Congress has already made its thoughts and wishes on that subject explicitly known. If it has, then the agency must do whatever Congress has said to do. Case closed.

But, if Congress has been ambiguous or hasn’t addressed the issue before, the court moves to step two: asking whether the agency’s interpretation of its power is “a permissible construction of the statute.” As long as the agency’s interpretation isn’t “arbitrary, capricious or manifestly contrary to the statute,” the agency can implement its policy. When this happens, it’s called the Chevron deference, and it has been court precedent for almost 40 years, and Republican lawmakers have been trying to get rid of it for almost as long.

The ruling in W.Va. v. EPA, written by Chief Justice John Roberts, hinges on the “major questions doctrine,” also called the “major rules doctrine.” According to the Congressional Research Service, the major questions doctrine tends to reject an agency’s policy when it’s an issue of “vast ‘economic and political significance,’ ” and “Congress has not clearly empowered the agency with authority over the issue.”

The major questions doctrine is favored by conservatives, so we can reasonably expect this very right-leaning court to use it frequently.

The problem with this, of course, is multifaceted: One, Congress is locked in hyperpartisan gridlock more often than not, so depending on Congress to pass a law to establish an important regulatory policy is like waiting for the rain to water your plants in a drought.

Two, politicians are more likely to favor the corporate interests that fund their campaigns. Translation: If Congress gets to decide, everything is about to become more dangerous for ordinary people as quality controls on food, drugs and consumers disappear and pollution in our air, soil and water multiplies.

Three, this ruling encourages courts to take regulatory powers from agencies that specialize in those fields (like the FDA’s power over food safety and quality or the CDC’s power over public health emergencies) and put them in the hands of politicians — some of whom genuinely believe that climate change is a hoax, COVID-19 is a government conspiracy and there are such things as Jewish space lasers.

The government’s job is to safeguard the people’s interest. If every regulatory decision has to get approval from Congress, instead of being handled by federal regulatory agencies, policies that protect people will either fall prey to corporate interests or get lost in legislative limbo.