Last week, the Supreme Court decided a case that will have substantial impact on how greenhouse gas emissions and other public safety issues are regulated at the federal level.  The case, West Virginia v. Environmental Protection Agency, – US –, (2022), struck down a regulation that was never implemented and therefore does not immediately change any current EPA program to regulate climate change. However, the Court’s reliance for the first time on a new doctrine called the Major Questions Doctrine has potential to significantly impact future agency decisions where Congress has not explicitly outlined how to regulate – making it harder for EPA, and all other federal agencies, to advance their missions. In light of this decision, it is even more crucial for states, regions and communities to respond to the climate crisis and work to reduce greenhouse gas emissions.

Striking Down CPP’s Methods

The decision struck down the Clean Power Plan (CPP)’s approach restrict greenhouse gas emissions by incentivizing movement to clean energy but did not strike the goals of the CPP itself. The CPP is a 2015 Obama Administration approach to reduce climate pollution from the nation’s powerplants.  The court ruled that the EPA was not authorized by the Clean Air Act (CAA) to make such a major change to the nationwide grid. To make such a major policy decision, an agency like the EPA would need clear Congressional authorization, which the Court found Congress did not provide.

Historically, the EPA utilized the power given to it by Congress to regulate individual powerplant site emissions through pollution standards set by the agency. The Court found that the CPP was different because it marked a shift from using the EPA’s authority to require individual generators to reduce emissions to a program changing all generators’ methods for producing energy – namely, limiting their use of coal. While the EPA may have been right that climate change required more drastic action than requiring emission efficiency from “dirty” generators, the court found that Congress had not explicitly given the EPA the authority to make that decision.

This does present an obstacle to the goal the CPP was trying to achieve since the EPA now needs further authorization from Congress to take such a broad step. States, however, are not blocked from taking up the torch. Additionally, since the CPP never went into effect, the Biden administration may still craft a plan which takes more aggressive steps to curtail emissions while acting within the traditionally understood authority of the EPA, as defined by the Supreme Court. It would be a delicate balance, but the court’s opinion hints that the answer would lie in traditional regulation of individual sources rather than the restructuring of the national grid’s generators.

Major Questions Doctrine

The Court elevates a relatively new doctrine, previously cited only in one case’s dissent, to form the heart of its decision. See Gundy v. U.S., 139 S. Ct. 2116 (2019) (dissent)

This major questions doctrine (MQD) is a new way of approaching the Non-Delegation Doctrine (NDD). NDD is the principle that Congress may not delegate its legislative power to administrative agencies without violating the separation of powers in the Constitution. For almost a century, when Congress delegated its legislative power, it had to provide an “intelligible principle” to guide the agency’s exercise of discretion. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), In other words, Congress could only delegate if it made clear “the general policy” and the “boundaries of authority.”

But starting in the late 20th Century, the Court applied a standard that was very deferential to the agencies’ own interpretation of whether Congress supplied the “intelligible principle” required. This is popularly known as Chevron deference, named for the case in which the court first made clear this deferential standard that allowed agencies to interpret statutes they administer. See Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837 (1984). Since broad delegations were necessary in the complex world of administrative agencies, and the judiciary is ill equipped to draw meaningful lines, the agency’s expertise usually won the day.

The MQD turns Chevron deference on its head. As a matter of interpretation, if Congress gives an agency responsibility or “powers of vast executive and political significance” they must be explicit on intent to delegate that authority and what the delegation entails or else the court will read it as not delegating. In other words, the more politically significant the issue is, the more likely the Court is to require an explicit statement from Congress. The MQD was first discussed in a dissent by Justice Gorsuch (and two others) in 2019 as a way to more strictly restrain the administrative agencies. It now has been adopted by the majority for the first time in West Virginia v. EPA.

A shift to the MQD to resolve cases involving agency regulation would bind agencies’ hands and require explicit Congressional approval for them to act. This would slow down the agency’s work and make the executive agencies more dependent on the legislative majority rather than the White House. This is especially troublesome for an EPA looking to take big steps to combat climate change since they would need more explicit authority to take measures that are not outlined in the statutes that give the EPA its power. It is not impossible to pursue progressive policies, but it will make the process more difficult.

The Importance of States and Regions

With federal agencies’ powers potentially curtailed, actions at the state and regional level are even more important. Thankfully, organizations like Acadia Center that focus on state, regional and local action are on the job.

One example of a successful regional effort to reduce GHG emissions is the Regional Greenhouse Gas Initiative (RGGI). Acadia Center was actively involved in its beginnings back in 2008 and 2009. In 2022, RGGI is predicted to deliver around $1B in allowance revenues for the eleven member states (including all of New England and New York). Because much of this money is invested in clean energy and energy efficiency within the member states, it returns significant economic and environmental benefits and CO2 reductions within the states. RGGI Inc. released a report in May that estimates that the $196M invested in 2020 will return $1.9B in lifetime energy bill savings and 6.6 million short tons of CO2 emissions avoided.

This fall, RGGI is undergoing the Third RGGI Program Review, and Acadia Center is seizing this opportunity to tailor the program to ensure that the priorities called for by environmental justice communities are fully addressed in the next phase of RGGI.  Historically, these communities have faced a disproportionate burden energy system pollution. During the program review, it is essential that each RGGI state critically consider equitable investment in communities that face the worst effects of polluting power plants. This ongoing program review provides a chance for states to consider the recent auctions, history of investments across the states, the need to directly address environmental justice communities, and other mechanisms associated with the cap-and-invest program. Acadia Center remains closely involved in RGGI policy conversations across the RGGI states and will continue to advocate for program reforms that drive equitable investment and climate action.