On the last opinion day of the Supreme Court’s explosive 2021 term, the Court announced an opinion that will severely inhibit the nation’s effort to combat climate change. The dispute in West Virginia v. EPA (2022) involved the proper interpretation of language in the Clean Air Act. The vote was 6-3, and the opinion provides yet another example of the most conservative Court in decades.

Section 111 of the Clean Air Act authorizes the Environmental Protection Agency (EPA) to regulate the sources of any substance that “causes or contributes significantly to air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” Carbon dioxide and other greenhouse gases fit that description.

Among the most significant of the sources the EPA regulates are fossil-fuel-fired (mainly coal- and natural-gas-fired) electricity producing power plants, which today are responsible for about one quarter of the nation’s greenhouse gas emissions. Curbing that output is a necessary part of any effective approach for addressing climate change. For that reason, Section 111 expressly authorized the EPA to adopt the “best system of emission reduction” for electric power plants.

Endeavoring to carry out its Section 111 responsibility, the EPA issued the Clean Power Plan (CPP) in 2015. The premise of the Plan was that operational improvements at the individual-plant level would cause only small emission reductions or would cost far more than a readily available alternative. That alternative is called “generation shifting,” a term referring to ways of shifting electricity generation from higher emitting sources to lower emitting ones — more specifically, from coal-fired to natural-gas-fired sources, and from both to renewable sources like solar and wind.

Despite the express authorization to adopt the “best system” of emission reduction, in an opinion authored by Chief Justice Roberts, the Court’s majority determined that regulation by generation shifting is not included.

Prior to 2015, the EPA had always set emissions limits under Section 111 based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly. It had never devised a regulation by looking to a “system” that would reduce pollution simply by “shifting” polluting activity “from dirtier to cleaner sources.”

The majority’s opinion states that “Congress intends to make major policy decisions itself, not leave those decisions to agencies.” Including generation shifting in the EPA’s toolkit was not only “unprecedented.” It effected a “fundamental revision of the statute,” changing it from one sort of scheme of regulation into an entirely different kind.

A dissenting opinion by Justice Kagan, joined by Justices Breyer and Sotomayor, asserts that such “generation shifting” orders are well within the authorization of the statute when it says that the EPA is authorized to require power plants to use the “best system” to reduce CO2 emissions. In fact, the parties do not dispute that generation shifting is indeed the “best system” — the most effective and efficient way to reduce power plants’ carbon dioxide emissions.

The majority claims that granting the EPA this much authority would be contrary to cases like Brown & Williamson, which held that the FDA did not have authority to regulate tobacco; or Alabama Assn of Realtors, which held that the CDC did not have authority to impose a nationwide eviction moratorium; or National Federation of Independent Business, which held that OSHA did not have authority to require large employers to impose vaccine-or-mask requirements on their employees. It said these cases all involved agencies attempting to regulate “outside their lanes” and that for the EPA to impose generation shifting requirements on coal plants would involve doing the same. 

The dissenters argued that when there is a mismatch between the agency’s usual portfolio and a given assertion of power, courts have reason to question whether Congress intended a delegation to go so far. But here there can be no legitimate claim that the EPA was regulating outside its lane — the Clean Power Plan falls within EPA’s “wheelhouse” because “evaluating systems of emission reduction is what the EPA does.”

Moreover, say the dissenters, nothing in the rest of the Clean Air Act, or any other statute, suggests that Congress did not mean for the delegation it wrote to go as far as the text says. “In rewriting that text, the Court substitutes its own ideas about delegations for Congress’s. And that means the Court substitutes its own ideas about policymaking for Congress’s. The Court, rather than Congress, will decide how much regulation is too much. Whatever else this Court may know about, it does not have a clue about how to address climate change.”

In the ideal world, Congress would move to specifically authorize what the Court would not. However, in this polarized world Congress is unlikely to act, leaving the Court with the last say and the battle against climate change seriously eroded.

John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.