Thursday, June 30, 2022

The Travesty of John Roberts and West Virginia v. EPA - A First Take

 Make no mistake, the Supreme Court's 6-3 ruling today in West Virginia v. EPA is every bit as outrageous as its decision to overrule Roe v. Wade in the Dobbs case. For the first time in its history, the Court has (a) issued an advisory opinion - a legal ruling overturning a non-existent regulation; (b) manifestly misinterpreted the Clean Air Act to conclude that EPA has no authority to create incentives for fuel-switching to reduce air pollution; and (c) adopted for the first time the "major question doctrine, which basically overrules in all but name the Court's 2007 decision in Massachusetts v. EPA, which had confirmed EPA's authority to regulate greenhouse gases under the Clean Air Act.

Immediately, this is a blow to US efforts, such as they are, to combat climate change using existing authorities. That's bad enough, but the implications for all federal efforts to protect public health and safety regulations should concern every American. 

Whenever a new problem arises, the Court can now use the major questions doctrine to require Congress to enact a new statute before an agency (not just EPA) can take action. Even if Congress previously granted the agency broad regulatory authority in a prior statute, the Court's conservative majority can use the "major question doctrine" to strike down regulations, knowing that it will end any chance of regulation because of congressional gridlock. 

But isn't the scope of the "major questions doctrine" limited? According to the concurrence by Justice Gorsuch (signed onto by Justice Alito), it is limited to (1) issues of "great 'political significance;'" (2) when agencies seek to "'regulate a significant portion of the national economy;'" (3) in the absence of "clear congressional authorization." The doctrine also applies when a federal agency regulations "intrude into an area that is the particular domain of state law." Gorsuch hastens to add that this this list might not be exhaustive. Perhaps I am overly jaded, but it seems to me that any regulatory effort a Supreme Court justice finds politically or ideologically objectionable can be said to have "great political significance." And there are not many substantive federal regulations that cannot be said to regulate a significant portion of the national economy, on a common definition of the word "significant." Meanwhile, whether or not any particular congressional authorization is sufficiently clear rather depends on how picky the justices choose to be. In relevant provisions, the Clean Air Act refers to "all pollutants" and "systems" of pollution control, but the majority in West Virginia v. EPA concluded that was not specific enough for EPA to issue regulations incentivizing (not mandating) fuel-switching. What if the Act had included this language: "EPA has discretion to regulate fuel inputs"? Would that have been sufficiently precise? Maybe, maybe not. It still doesn't include the phrase "fuel-switching." The bottom line is that the major questions doctrine, while taking discretion away from executive branch agencies, aggregates to Supreme Court justices a great deal of discretion to overturn regulations they simply do not like. So much for the rule of law.

Justice Roberts disserves special opprobrium for his transparent effort to elide the standing issue in the case by turning it into an issue of mootness. The fact of the matter is that no rule was presently in force, and no state or private petitioner suffered any harm from the Obama-era rule that the Court stayed (in another unprecedented move) back in 2016. Roberts maintained that states were harmed because the D.C. Circuit had repealed the Trump regulation, including that regulation's repeal of the Obama Clean Power Plan. Consequently, the Obama rule was back in effect. Except, it wasn't. At the Biden Administration's request, the DC Circuit did not reactivate it, and Biden announced that it would not resurrect the CPP. Consequently, the only harm to the states from Obama's Clean Power Plan was purely theoretical. There was no harm in fact - zero. Not even Justice Scalia would have had the stomach to find standing in this case. In fact, I have never seen so much deliberate obfuscation as Robert's employs in his majority opinion on the standing issue. 

By the way, just how "major" was the CPP in terms of economic impact? Consider this: despite the fact that the rule never took effect, all of its goals were achieved by the market and more quickly than the regulation would have required. In hindsight at least, the rule seems completely insignificant, except as a matter of law, based on the opinions of six activist Supreme Court justices. 

As a practical matter, the West Virginia decision obliterates the greatest advantages of sub-congressional rule-making, which are flexibility and speed. Congress can, on occasion, act quickly, as we have just seen on the issue of gun control. But that is exceptional. When the next pandemic comes around, how many people will have to die to spur Congress into action, so that agencies can take sensible actions to protect public health?

Back in So.Cal. 40 Years Later

After the AALS conference in San Diego, I drove up to Los Angeles to spend a week with old friends I had not seen for more than 30 years. Tw...