June 30, 2022

"The Supreme Court on Thursday limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants..."

"... dealing a blow to the Biden administration’s efforts to address climate change. The vote was 6 to 3, with the court’s three liberal justices in dissent, saying that the majority had stripped the E.P.A. of 'the power to respond to the most pressing environmental challenge of our time.'...  The implications of the ruling could extend well beyond environmental policy and further signal that the court’s newly expanded conservative majority is deeply skeptical of the power of administrative agencies to address major issues facing the nation and the planet."
The question before the justices in the new case, West Virginia v. Environmental Protection Agency, No. 20-1530, was whether the Clean Air Act allowed the E.P.A. to issue sweeping regulations across the power sector. More broadly, the court was asked to address whether Congress must “speak with particular clarity when it authorizes executive agencies to address major political and economic questions.["] The court has called this inquiry the “major questions doctrine.” 

From the majority opinion, written by the Chief Justice (citations omitted):

The dissent criticizes us for “announc[ing] the arrival” of this major questions doctrine, and argues that [the cited precedents] simply followed our “ordinary method” of “normal statutory interpretation.” But in what the dissent calls the “key case” in this area, Brown & Williamson, the Court could not have been clearer: “In extraordinary cases . . . there may be reason to hesitate” before accepting a reading of a statute that would, under more “ordinary” circumstances, be upheld. Or, as we put it more recently, we “typically greet” assertions of “extravagant statutory power over the national economy” with “skepticism.” The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of “clear congressional authorization” —confirms that the approach under the major questions doctrine is distinct. 

As for the major questions doctrine “label[],” it took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we. 

Under our precedents, this is a major questions case....

68 comments:

Michael K said...

The EPA was Nixon's second worst mistake. Dropping the gold standard was, of course ,#1. He could have reset it like Roosevelt did.

Joe Smith said...

How many times do I have to say this:

"Build fucking nuclear power plants!!"

That is all...

cassandra lite said...

Until the EPA has the power to regulate what comes out of China and India, save the outrage.

It's disturbing how often our elites signal, inadvertently or not, that they believe what we do within these borders affects the climate within these borders. (California is the best example.)

Kagan calling it the crisis of our time is hilarious. On what does she base that? If it were the crisis of our time, you'd be able to pick up E. Hampton and Martha's Vineyard properties for a song.

Mike (MJB Wolf) said...

majority is deeply skeptical of the power of administrative agencies to address major issues…

Yes, Adam, explore this theme further.

Aggie said...

About damn time.

https://www.wsj.com/articles/the-epas-de-facto-fracking-curb-permian-basin-environmental-protection-agency-ozone-11656109324

Mark said...

How long before we hear again that the Court, with this ruling emphasizing the role of the people's democratically elected representatives in enacting laws, is anti-democratic?

Buckwheathikes said...

This case represents the beginning of the end of the Deep State.

You watch how fast they get rid of this court.

who-knew said...

Good and overdue. Adam Liptak says "The implications of the ruling could extend well beyond environmental policy and further signal that the court’s newly expanded conservative majority is deeply skeptical of the power of administrative agencies to address major issues facing the nation and the planet." He's wrong. The court isn't skeptical of the of the agencies power to address major issues, it is skeptical of the agencies claims to power they have never been given in the first place. I know it's a radical notion but the bureaucracy only has the power that the congress actually give it and can't grab more power just because it thinks there is problem that needs fixing.

Iman said...

The flowery horseshit of the NYT. Let Congress make the law and then the agency can operate within those parameters. A good and swift kick to the raisins of 0bama/Biden.

AlbertAnonymous said...

Haven’t read the opinion yet, but I would imagine the idea is that Congress can “address major issues facing the nation” and have the administrative agencies administer the programs Congress adopts. But Congress cannot simply say “we create an EPA to do whatever it wants”.

The People have almost no way to end/change a behemoth like the EPA. But we do have a way to change Congress (not that we’ve done it much lately what with all the octogenarians running the country and getting fucking rich in the process).

Congress should act or not act and we can fire them or not fire them. Creating massive perpetual state run institutions like the EPA should be resisted by all of us (pro-life and pro choice alike).

Dave Begley said...

Rewrite!

SCOTUS today affirmed that our nation is governed by the rule of law and not the rule of men. If Congress wants to impose radical, extreme and unnecessary limits on carbon dioxide emissions, it must pass a law. Democracy is how laws are enacted in this country. We got rid of the King over 200 years ago.

donald said...

We’ll duh Adam.

gspencer said...

"with the court’s three liberal justices in dissent, saying that the majority had stripped the E.P.A. of 'the power to respond to the most pressing environmental challenge of our time.'..."

No, here's the most pressing challenge of our time,

TOO
MUCH
GOVERNMENT

Mark said...

The problem is that about 85 percent of administrative law is completely unconstitutional.

gilbar said...

this might be, the biggest decision of the term

Yancey Ward said...

This was the court's most important ruling this term, and the correct decision. Time for Congress to stop delegating its power in allowing agencies to simply write laws that were never enacted.

Kagan's dissent is a joke- under her argument, there is nothing the EPA can't do by simply declaring anything it wishes an environmental emergency.

typingtalker said...

" ... dealing a blow to the Biden administration’s efforts to address climate change."

I guess the Biden administration will have to find a legal way to address climate change. Shouldn't be too hard. Or will it?

rhhardin said...

The population doesn't think it's a problem, only the elites.

Freder Frederson said...

Well at least they didn't claim that the founders didn't know what carbon dioxide was, therefore it can't be regulated.

n.n said...

The EPA is a dual-use agency a la Obama/IRS, Biden/FBI, etc. The gold standard is pegged to physical reserves. The problem is labor (e.g. in and outsourcing, immigration reform, Pro-Choice ethical religion) and environmental (e.g. policy based on models and prophecy rather than science, Green technology) arbitrage, progressive prices hidden in redistributive change or shared/shifted responsibility, and liberal fiscal policy of credit/debt emission.

The problem with nuclear is the selected fuel cycles suitable for development of other technologies (e.g. weapons), and Carter's proscription of reprocessing, and now Biden's carbon assault, that are anthropogenic forcings of durable risk to produce, refine petroleum and petroleum-related products.

Achilles said...

Time for Congress to start doing it's fucking job.

Beasts of England said...

How dare you!

Temujin said...

Unelected bureaucrats, unaccountable to anyone, with unlimited years in the job, large budgets they can provide for themselves, making unilateral decisions that become in effect, dictates from on high, is not anywhere in our Constitution. This is not how our Government is supposed to work. Not even close.

This is an important decision from the Court. And it illustrates how important Trump's attempted "Schedule F" would have been...had he won reelection. Instead, Biden won and removed Schedule F immediately. Guess who's all about the Deep State? Because he knows they protect their own.

Schedule F

Freder Frederson said...

Actually, it is a pretty limited ruling. Considering the batshit craziness in Dobbs (especially Thomas' concurrence) and New York Rifle and Pistol Association (in which Thomas wrote the batshit crazy decision), this is actually a relief. I fully expected this court to rule that administrative rules were unconstitutional.

Lem Vibe Bandit said...

Signaling the agathokakological end to rule by expertise.

Michael K said...

Blogger Joe Smith said...

How many times do I have to say this:

"Build fucking nuclear power plants!!"

That is all...


That is the "Tell." They don't believe it themselves.It's a ploy to get the rubes, like Inga and Lefty Mark, in line. Then they will have control. This is the reason why Jefferson did not want the people to all congregate in cities. They become too much like sheep.

Václav Patrik Šulik said...

Adam Liptak is the best reporter covering the Supreme Court today. I don't always agree, but he's able to cover stories quickly.

Creola Soul said...

I haven’t read the details yet, but I hope it’s written broadly enough to apply to all federal agencies. For too long, in both Democrat and Republican administrations, the alphabet soup agencies (EPA, FERC, BLM, DOT, etc) have pushed the limits with policies that should be the purview of Congress. I’m hopeful this ends such.
The Obama EPA was particularly devious in its use of “sue and settle”, inviting environmental petitioners to sue the agency and then they would strike a settlement that established a new policy precedent, often beyond current law. The Trump administration stopped the practice and maybe this will help keep the abuses in check.

Gusty Winds said...

Kick Ass! We get to keep the lights on!

Freder Frederson said...

Unelected bureaucrats, unaccountable to anyone, with unlimited years in the job, large budgets they can provide for themselves, making unilateral decisions that become in effect, dictates from on high, is not anywhere in our Constitution. This is not how our Government is supposed to work. Not even close.

I'm confused. Are you talking about the Supreme Court or Federal Agencies.

Bob_R said...

Both the far left and the far right want a Bong Bong, but they give us Prick Prick and Dim Dim.

Owen said...

I continue to be astounded by the lack of science education—maybe, more accurately, the lack of scientific humility and skepticism— in “environmental science.” Almost everyone has been reduced to arguing over deck chair placement while ignoring the iceberg of ignorance we call atmospheric physics. Read Shellenberger or especially Koonin; and most especially read people like Pielke and Curry. Devote a few hours to studying how year after year the grifters tweak their useless models and cook the observational record to produce unfalsifiable claims of disaster just around the next corner unless we repent immediately at impossible cost while the Chinese and Indians sell us windmills and laugh all the way to the bank, and Putin holds us all to ransom.

High time that we repurpose the EPA to work on real environmental issues. Me, I would send their CO2 cops out to pick up roadside litter.

/rant

And, yes, build nuclear power plants. We’re way behind that power curve.

ccscientist said...

One of the problems with gov agencies and particularly the EPA is that it is full of people who believe in zero tolerance. If a pollutant exists, then it must be totally eliminated. But we can now measure parts per trillion of many things, at which low level they are harmless. EPA rejects all de minimus arguments.
On climate change, the IPCC models show that the world in 2100 is projected to be much richer than today, but with climate change that richness is reduced somewhat. In contrast, they studiously avoid calculating what happens if we shut everything down to prevent climate change (which is what Biden is busy doing--still trying to destroy fossil fuels if you haven't noticed). The answer is that chaos and poverty result. Look at Sri Lanka which is collapsing because the gov mandated only organic farming, which did not work. It also locked down for covid real hard.

Dear corrupt left, go F yourselves said...

are environmental restrictions on carbon arbitrary and capricious?

M Jordan said...

I’m so happy with this decision I want to pray at midfield for all the abortionists then fire my concealed weapon into the air in celebration.

It’s been a good week or so, SC-wise.

Mike (MJB Wolf) said...

I think Roberts thinks he kept this ruling from reaching Chevron but I think time will prove him wrong. Agency bureaucrats and their pseudo law-making and admin-law expanding power grab means this is the first blow in a rising tide of anti-administrative state rulings. Virginia was on solid ground all along. Oops progressives are losing two of their three law-making powers at once! Now they’re down to the Legislative Branch to do the legislating the SCOTUS and bureaucrats no longer can.

Yancey Ward said...

I see Freder is back- hey, Freder, how much does Chicago spend on education per student?

M Jordan said...

I love oil. I love it’s slipperiness, it’s greasiness, it’s power. I like it clear and I like it dirty. I love shoving the gas pump into my car, shoving it hard. I like the smell of an oil-burning car and the cloud of blue smoke trailing it. I like to see oil rigs and pumps and derricks dotting the landscape and oceanscape, pumping eternally, religiously, empathetically. I love gas stations, old and new, dirty and pristine.

Oil, oil, oil! Give me oil in my lamp, keep me burning burning burning.

effinayright said...

As ever, Freder soils himself publicly by offering stupid observations he thinks are a bon mot:

"Freder Frederson said...
Well at least they didn't claim that the founders didn't know what carbon dioxide was, therefore it can't be regulated."


Such bitterness.

Bystander said...

Yancey Ward said...

"Kagan's dissent is a joke- under her argument, there is nothing the EPA can't do by simply declaring anything it wishes an environmental emergency."

What happens if the EPA and, say, the CDC come to opposite conclusions about some emergency? Televised Cage Match between the directors?

effinayright said...

What Owen said.

Ask a Green weenie to list the top five atmospheric gases in order of concentration, and they can't do it. (Almost all put oxygen at the top. Fail)

Ask what is the largest green house gas by concentration. (Almost all say CO2. Fail)

Ask on average how much CO2 is in our atmosphere. (never answered in "hundred parts per million" units; most say 5% or 10%. Fail)

But....but....we're all gonna fry!!

Mark said...

Yes, as I suspected, the EPA decision is being called an attack on democracy.

Readering said...

If Congress believes an agency it created has overstepped its bounds it can say so. Judicial activism reigns.

Mark said...

This was the court's most important ruling this term

I guess that explains your advice for Republicans to pass laws allowing the killing of prenatal babies.

effinayright said...

RE building nuclear power plants:

I've seen some TED talks on YouTube arguing for thorium nuclear reactors, in front of the usual pinko lefty audiences.

It makes them uncomfortable.

Because they could be made cheap, take up only a tiny amount of space, offer limitless power, generate very little radioactive waste compared with Old School nukes, and physically cannot undergo meltdowns.

The main objection seems to be that they are not windmills or solar----which don't work.

But it's interesting to see the trial balloons going up.

p.s. you won't see it in the media, but the G7 nations are frantically tiptoeing backwards away from the Green commitments they made only last year. Putin has shown the folly of shutting down coal and nuclear. Once again, Trump was right!

Michael K said...

I'm confused. Are you talking about the Supreme Court or Federal Agencies.

Judge Freder is confused. Take your choice. The USSC in the 70s or the Administrative State that has taken over for Congress. The Congress members are too busy making money to legislate. Do you happen to know when Congress passed the last Budget ?

Jamie said...

I'm confused. Are you talking about the Supreme Court or Federal Agencies.

Freder! My heart warms! Exactly the point conservatives have been making about an activist, liberal-to-progressive, "living Constitution" Supreme Court for a long time. Thankfully, even with Roberts still squishing around in there, we seem to have taken a step away from those bad old days for now.

Welcome to the side of the angels and Constitutionalists!

Andrew said...

This almost makes me as happy as the overturning of Roe v. Wade. I'm not quite sure I can handle this much good news. The Sup Ct will be the gift (from Trump) that keeps on giving.

"6-3" is a magic number. I look forward to that number reappearing many times in the near future, to bless me and the like-minded with happiness. And bless us with the wailing of our enemies. Until the Dems succeed in packing the Court, which is unfortunately a real possibility.

John henry said...

"carbon" emissions or "carbon dioxide" emissions?

People who don't know the difference are scientifically illiterate.

People who do know the difference but say carbon anyway are dishonest propagandists.

We should not pay attention to either.

In any event, now that the world is discovering that we need to burn coal, co2 is on its way out as a concern with it piddly-ass 400ppm (0.04%)

Next big thing? Reducing atmospheric nitrogen 780,000ppm (78%)

Holland even has a ministry devoted to reduction of atmospheric nitrogen,.

I talked about this 3-4 years ago. The thing is, I thought I was joking!

John LGBTQ Henry

John henry said...

At least the Supremes understand the difference

No. 20–1530. Argued February 28, 2022—Decided June 30, 2022[2]

In 2015, the Environmental Protection Agency (EPA) promulgated the Clean Power Plan rule, which addressed carbon dioxide emissions from existing coal- and natural-gas-fired power plants.


John LGBTQ Henry

Mark said...
This comment has been removed by the author.
Mark said...

"6-3" is a magic number. I look forward to that number reappearing many times in the near future

It will be interesting to see how the girls do without the moderating presence of Breyer. If they go shrill left, it may nudge Roberts and Mini-Me further into the Thomas-Alito-Gorsuch-Barrett faction. And Kagan might slide in that direction now and then too.

John henry said...

He could have reset it like Roosevelt did.

"devalued" would be the correct word.

From $20 (and change) where it had been since the founding, to $35.

Slight @20 cents adjustment in the 1820s to sync it with silver

BUMBLE BEE said...

Joe Biden can't solve the border crisis, the gasoline shortage or inflation. Give him enough money and he'll lower the earth's temperature. What is the earth's ideal temperature Freder? Hey... leave that hockey stick in the garage.

effinayright said...

Freder Frederson said...
Unelected bureaucrats, unaccountable to anyone, with unlimited years in the job, large budgets they can provide for themselves, making unilateral decisions that become in effect, dictates from on high, is not anywhere in our Constitution. This is not how our Government is supposed to work. Not even close.

I'm confused. Are you talking about the Supreme Court or Federal Agencies.
*****************


Yes, Bullwinkle: you are soooo confused!


The Supreme Court IS in the Constitution.

Supreme Court justices are not "bureaucrats".

They are unelected, but they are nominated by the POTUS and approved by the Senate

They do not have large budgets.

They ARE empowered to make "unilateral decisions", also known as legal rulings, which they are empowered to make under the Constitution.

So other than being completely wrong----you're right!!!

Michael K said...


Blogger Readering said...

If Congress believes an agency it created has overstepped its bounds it can say so. Judicial activism reigns.


You're kidding, right ? Congress has retired and left the Administrative State in its place. Congress members are too busy raising money (for campaigns and their families) to bother with legislation.

Can you answer my question about the last Budget passed by Congress ?

mccullough said...

Sotomayor should retire now so that Biden can nominate her replacement and get that person confirmed before the end of the year.

Kagan should think about retiring as well.

Robert Cook said...

"Kagan calling it the crisis of our time is hilarious. On what does she base that? If it were the crisis of our time, you'd be able to pick up E. Hampton and Martha's Vineyard properties for a song."

No, because people like you who deny the peril of global climate change will continue to buy shore front properties wherever it may be found.

Robert Cook said...

"What is the earth's ideal temperature Freder?"

It's not what is the earth's ideal temperature, it's what is the ideal temperature for life (as we know it) to continue to flourish on this earth. The earth will still be here long after humankind has perished (or fled into space), and the orders of living organisms on the planet will continue to die away as new orders arise, all in response to earth's changing conditions.

Yancey Ward said...

"No, because people like you who deny the peril of global climate change will continue to buy shore front properties wherever it may be found."

Wow, since when is Obama climate denier, Cook?

Yancey Ward said...

"What happens if the EPA and, say, the CDC come to opposite conclusions about some emergency? Televised Cage Match between the directors?"

In that case, I would like my Thunderdome version- two men enter, neither one leaves.

effinayright said...

Robert Cook said...
"What is the earth's ideal temperature Freder?"

It's not what is the earth's ideal temperature, it's what is the ideal temperature for life (as we know it) to continue to flourish on this earth. The earth will still be here long after humankind has perished (or fled into space), and the orders of living organisms on the planet will continue to die away as new orders arise, all in response to earth's changing conditions.
*************

Cookie, the Earth has been both a fuckofalot hotter and a fuckofalot colder than it is today, and our hominid ancestors as well as more recent homo sapiens have come through it just fine. There IS no "ideal temperature for life" on Earth.

Yes, there is evolution, and yes there are extinctions. But at no time in the past 66 million years---since the last big asteroid hit----has life itself come close to perishing.

A degree or two here and there is a BIG NOTHING.

On the Celsius scale a change of 1 degree equals a 0.3 PERCENT change.

Every day in most countries on this planet, hi-lo temperatures vary by about 15-20 degrees.

Get a frickin' grip!

JAORE said...

"No, because people like you who deny the peril of global climate change will continue to buy shore front properties wherever it may be found."

Like Obama?

THIS is what democracy looks like.

The Godfather said...

OK, snap quiz! Answer the following without using Google or any other search engine.

How many commissioners are there on the EPA? And name at least one of them.

* * *

How did you do? Did you know there are no EPA Commissioners, there's just a single Administrator? Did you know his/her name?

If you didn't, don't feel bad. I didn't know any of these things until I looked them up.

But I don't advocate turning the US economy over to a faceless/nameless bureaucrat. Of course, I wouldn't want Congress to control the economy either. But I figure I can count on Congress being feckless, so there's that.

Rusty said...

Robert Cook said...
"Kagan calling it the crisis of our time is hilarious. On what does she base that? If it were the crisis of our time, you'd be able to pick up E. Hampton and Martha's Vineyard properties for a song."

"No, because people like you who deny the peril of global climate change will continue to buy shore front properties wherever it may be found."

Oh. You mean like Barak Obama and their mansion on Marthas Vineyard? People like them? One thing I've noticed about the global warning crowd is that we're always ten years away from total global meltdown. That was sixty years ago. Some people just enjoy being frightened.

Robert Cook said...

"Yes, there is evolution, and yes there are extinctions. But at no time in the past 66 million years---since the last big asteroid hit----has life itself come close to perishing."

And I didn't say "life itself" would perish. I said that life forms on earth expire and arise in response to conditions on the earth. Life forms plentiful on the earth today may die out, but other forms will arise. (Humans, being adaptable, may live on for awhile, but probably not in the same numbers or living conditions as we see today.)

Greg The Class Traitor said...

Freder Frederson said...
"Unelected bureaucrats, unaccountable to anyone, with unlimited years in the job, large budgets they can provide for themselves, making unilateral decisions that become in effect, dictates from on high, is not anywhere in our Constitution. This is not how our Government is supposed to work. Not even close."

I'm confused. Are you talking about the Supreme Court or Federal Agencies.


Both
Roe was an example of SCOTUS doing that, the EPA's "Climate change" BS was an example of the bureaucrats

Greg The Class Traitor said...

Readering said...
If Congress believes an agency it created has overstepped its bounds it can say so. Judicial activism reigns.

So apparently Readering now believes that Congress is not bound by the US Constitution.

Will you continue to "believe" that when it's a GOP Congress?