{"id":8518,"date":"2022-08-03T15:43:13","date_gmt":"2022-08-03T15:43:13","guid":{"rendered":"http:\/\/lonecandle.com\/?p=8518"},"modified":"2022-08-03T15:43:13","modified_gmt":"2022-08-03T15:43:13","slug":"the-supreme-courts-big-epa-decision-is-a-massive-power-grab-by-the-justices","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=8518","title":{"rendered":"The Supreme Court\u2019s big EPA decision is a massive power grab by the justices"},"content":{"rendered":"\n

\n\n“West Virginia v. Environmental Protection Agency<\/em><\/a> strikes down a federal environmental regulation of power plants that never took effect, that the Biden administration has no intention of reinstating, and that would have accomplished absolutely nothing<\/a> even if it had be enforced.<\/p>\n\n\n\n

Nevertheless, the Court voted along ideological lines to strike down this regulation that the EPA drafted under authority granted by the Clean Air Act, claiming that it amounts to an \u201cextraordinary\u201d overreach by the EPA. And their decision has enormous implications both for the environment<\/a> and for the federal government more broadly.<\/p>\n\n\n\n

At the very least, the West Virginia<\/em> decision strips the EPA of its authority to shift energy production away from dirty coal-fired plants and toward cleaner methods of energy production \u2014 although market forces have thus far accomplished much of this shift on their own, because coal-fired plants<\/a> are often more expensive to operate than cleaner plants. The decision could also lead to additional limits on the EPA\u2019s ability to regulate that industry going forward.<\/p>\n\n\n\n

The West Virginia<\/em> decision confirms something that has been implicit in the Supreme Court\u2019s recent decisions governing federal agencies\u2019 power to issue binding regulations under authority granted by Congress: When a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation<\/a> \u2014 and it will do so by invoking something known as the \u201cmajor questions doctrine.\u201d<\/p>\n\n\n\n

Under this doctrine, the Court explained in a 2014 opinion<\/a>, \u201cwe expect Congress to speak clearly if it wishes to assign to an agency decisions of vast \u2018economic and political significance.\u2019\u201d Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.<\/p>\n\n\n\n

This doctrine comes from nowhere. Last week, the Court said that abortion is unprotected by the Constitution<\/a> \u2014 leaning heavily on the fact that abortion is not mentioned in the Constitution. But the the major questions doctrine is also mentioned nowhere in the Constitution. Nor can it be found in any statute. The justices made it up. And, at least during President Joe Biden\u2019s administration, the Court has wielded it quite aggressively<\/a> to veto regulations that the Court\u2019s conservative majority finds objectionable.<\/p>\n\n\n\n

Roberts\u2019s majority opinion in West Virginia<\/em> does put some flesh on the fairly bare bones the justices have previously used to describe when they will declare something to be a \u201cmajor question.\u201d Roberts faults the EPA for issuing a novel kind of regulation pursuant to a \u201clong-extant\u201d statute that had not previously been used to justify similar actions. He claims that the EPA relied on an \u201cancillary provision\u201d of the Clean Air Act, rather than a more central provision of that law. And he criticizes the EPA for issuing a regulation which resembles bills that Congress previously considered but did not enact.<\/p>\n\n\n\n

But these judgments aredivorced from the text of the Clean Air Act itself. And Roberts admits that the major questions doctrine can nuke a regulation even when there is a \u201ccolorable textual basis\u201d supporting that regulation \u2014 that is, when the actual words of a federal law could support the action taken by a federal agency.<\/p>\n\n\n\n

The bottom line after the\u00a0West Virginia\u00a0<\/em>decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/2022\/6\/30\/23189610\/supreme-court-epa-west-virginia-clean-power-plan-major-questions-john-roberts<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“West Virginia v. Environmental Protection Agency strikes down a federal environmental regulation of power plants that never took effect, that the Biden administration has no intention of reinstating, and that would have accomplished absolutely nothing even if it had be enforced.<\/p>\n

Nevertheless, the Court voted along ideological lines to strike down this regulation that the EPA drafted under authority granted by the Clean Air Act, claiming that it amounts to an \u201cextraordinary\u201d overreach by the EPA. And their decision has enormous implications both for the environment and for the federal government more broadly.<\/p>\n

At the very least, the West Virginia decision strips the EPA of its authority to shift energy production away from dirty coal-fired plants and toward cleaner methods of energy production \u2014 although market forces have thus far accomplished much of this shift on their own, because coal-fired plants are often more expensive to operate than cleaner plants. The decision could also lead to additional limits on the EPA\u2019s ability to regulate that industry going forward.<\/p>\n

The West Virginia decision confirms something that has been implicit in the Supreme Court\u2019s recent decisions governing federal agencies\u2019 power to issue binding regulations under authority granted by Congress: When a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation \u2014 and it will do so by invoking something known as the \u201cmajor questions doctrine.\u201d<\/p>\n

Under this doctrine, the Court explained in a 2014 opinion, \u201cwe expect Congress to speak clearly if it wishes to assign to an agency decisions of vast \u2018economic and political significance.\u2019\u201d Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.<\/p>\n

This doctrine comes from nowhere. Last week, the Court said that abortion is unprotected by the Constitution \u2014 leaning heavily on the fact that abortion is not mentioned in the Constitution. But the the major questions doctrine is also mentioned nowhere in the Constitution. Nor can it be found in any statute. The justices made it up. And, at least during President Joe Biden\u2019s administration, the Court has wielded it quite aggressively to veto regulations that the Court\u2019s conservative majority finds objectionable.<\/p>\n

Roberts\u2019s majority opinion in West Virginia does put some flesh on the fairly bare bones the justices have previously used to describe when they will declare something to be a \u201cmajor question.\u201d Roberts faults the EPA for issuing a novel kind of regulation pursuant to a \u201clong-extant\u201d statute that had not previously been used to justify similar actions. He claims that the EPA relied on an \u201cancillary provision\u201d of the Clean Air Act, rather than a more central provision of that law. And he criticizes the EPA for issuing a regulation which resembles bills that Congress previously considered but did not enact.<\/p>\n

But these judgments are divorced from the text of the Clean Air Act itself. And Roberts admits that the major questions doctrine can nuke a regulation even when there is a \u201ccolorable textual basis\u201d supporting that regulation \u2014 that is, when the actual words of a federal law could support the action taken by a federal agency.<\/p>\n

The bottom line after the West Virginia decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[790,103,1313,1213,236,551,528],"class_list":["post-8518","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-courts","tag-environment","tag-epa","tag-judiciary","tag-regulation","tag-regulations","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8518","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=8518"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8518\/revisions"}],"predecessor-version":[{"id":8519,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8518\/revisions\/8519"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8518"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8518"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8518"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}