Supreme Court Wraps Up Term with EPA Decision

Last week the Supreme Court ruled to limit the Environmental Protection Agency’s power to regulate ...

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Last week the Supreme Court ruled to limit the Environmental Protection Agency’s power to regulate carbon emissions. David and Sarah are here to discuss the decision’s fallout and what it means for the rest of the administrative state. Plus: What did the Supreme Court say about Migrant Protection Protocols? And, understanding the controversial election-law case that the Supreme Court agreed to hear.

Show Notes:

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  1. Avatar photo
    Jacob

    It ultimately boils down to what the Court should do in the face of statutory ambiguities. To the Majority, they seem to be using Major Questions Doctrine as an application of the Canon of Constitutional Avoidance in the context of Nondelegation. As a general matter, in the face of doubt, apply a narrowing construction if nondelegation issues emerge.

    Kagan, on the other hand, thinks that in the face of ambiguity, the Court should defer to an agency that is acting within its area of expertise.

    Kagan's approach, at scale, seems really prone to power grabbing. What defines an agency's expertise, or which agency has the most expertise to produce a regulation? The EPA is the *Environmental* Protection Agency, but Climate is NOT the same thing as the Environment. What prevents this "sufficient expertise" contention from becoming a sort of arbitrary I-know-it-when-I-see-it type of thing?

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  2. Fiona B.

    Hi everyone, environmental science major here. This case is one of the most concerning to me this term. While I understand the reasons for the ruling and can buy into the argument of the majority opinion, the future of climate action now really hinges on a branch of government that, as David and Sarah said, doesn't really do its job. I believe climate change poses a major threat to future generations and will most significantly affect the most vulnerable people across the world, and this idea of the future worries me greatly. That is why I picked environmental science as my major. I am now greatly fearing a rise in emissions that leads to destructive global consequences in the near future because I doubt Congress will actually legislate. I would love it if they would, but I am not sure the public pressure is sufficient. In addition to being passionate about protecting the environment, I am passionate that this should not be an ideologically divisive issue. We all share the planet, and I believe we should all work to protect it. But I am really interested what the AO audience thinks about climate change and what we should do about it going forward. I know AO listeners come from a range of ideological perspectives, so I want to hear from everyone. If you are not particularly concerned about climate change, what might make you more interested in environmental action? I would love to know why people across the spectrum but especially those who are not especially supportive of climate action hold the positions that they do; if we understand each other, we can probably come up with better solutions!

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    WilliamJ

    Sarah, the "systems" to reduce air pollution I believe are engineering systems. That's sounds like how you would instruct to put scrubbers on the smoke stack, for instance. That makes more sense to me in terms of the overall scope of the legislation.

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    Mick Staton

    Regarding the "Independent Legislature" doctrine, I am wondering if David and Sarah could dig a little into the new voting laws passed in a number of states after the 2020 elections. I am specifically referring to rumors out of states like Texas and Georgia that added provisions to the law that allows the legislature to override the popular vote and appoint their own slate of electors if they believe the popular vote is "fraudulent."

    I have tried to track some of this down but have been unable to. This, to me, is the real danger we face in 2024 and beyond. Had laws like this been on the books in 2020 we might already be in a civil war right now.

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    Estoppel Enjoyer

    I just don't get how the non-delegation doctrine is consistent with textualism or originalism. There's no serious argument that the framers thought that non-delegation was a constitutional imperative. David and Sarah even had a whole episode segment dedicated to an article debunking the claim that the founders believed in the principle of non-delegation, and I recall that episode garnering close to zero push-back from either of them during the episode. And, even if there was support for non-delegation at the founding, why would that make it a constitutional requirement?

    I was always under the impression that an originalist textualist believes that acts of Congress can only be struck down when they 1) exercise a power not explicitly granted to Congress in the Constitution, or 2) violate a specific prohibition that can be found in the text, as understood according to the original public meaning of the terms. Which one is non-delegation exactly? I think it's pretty obviously neither. It's instead a prohibition found in the penumbras and emanations. Every time conservatives talk about non-delegation, all they can cite it 1) precedent, and 2) policy.

    The policy judgments about why broad delegations are bad are well-taken; maybe it's bad for democratic accountability, maybe it leads to unstable decisions, etc. But those aren't constitutional issues, are they? Clearly, if you're talking about the idea that the Constitution "vests" legislative power in Congress, that should mean its unalienable, sure. But no one thinks that Congress doesn't hold ultimate authority over the scope of its own delegations. Congress can, at any point, revoke or alter a delegation. The "Congress do your job" thing is probably correct, but that's a political point, not a judicial one. Gorsuch can come up with all of the wise elder philosophy he can about the importance of checks and balances, and the comparative institutional capacity of different branches, but it's just not in the text.

    The precedent is... there. But, it's about more of a zombie precedent than Lemon was in 2021. And, last I checked, this Court thinks that its own precedents are only valuable if they conform with the modern conservative movement's policy preferences.

    And the history is so cartoonishly lopsided in favor of no non-delegation imperative that it hardly merits debate anymore.

    Can someone please explain this to me?

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    Reading451

    Thankful again for this podcast and a sane, fair breakdown of these often complex cases and their implications. Keep it up!!

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    Whitman H. Brisky

    I'm not sure I agree with Sarah that the text actually allows the EPA to close an existing power plant. While it talks about "systems" the rest of the statute with regard to existing sources clearly contemplates the establishment of standards for a particular source, not shutting it down.

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      Sarah Isgur vertical-nib Author

      Oh I’m not sure I agree with that either. But the argument is that you’d have to grapple with the text to decide that question rather than lean on major questions doctrine before ever getting there, which is what they did.

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        Whitman H. Brisky

        Agreed.

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    Whitman H. Brisky

    Don't you think that the Gorsuch concurrence is really him saying he agrees with the dissent that this is really a non-delegation question (though disagreeing on whether it is non-delegable) but joined in the majority because he, Alito and probably Thomas, could not get a majority to agree with them to decide the that question, and took half a loaf by enshrining this "major question" doctrine as a way of reigning in the administrative state until they can get a case to limit the executive branch to executing the laws, not making them? Chevron makes it even worse, of course, because then the agency itself gets "deference" whenever it wants to expand its own footprint (as they always do). Of course this situation is even worse because there is a single EPA administrator appointed by the President rather than an independent regulatory commission. The EPA Administrator is as close to a Czar as we get here. Further, agencies such as the EPA are staffed mostly with self-sorted extremists on these issues - if you thought that national security and economic prosperity were at least as important as global warming, you wouldn't look for a job at the EPA. It is hard for me to imagine that it would be worse if the Court insisted that Congress is the only one who can actually legislate.

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    DWAnderson

    I have to say, I left the discussion of "major question doctrine" with a big question: Why is this doctrine anti-textualist? It strikes me as more like a canon of construction than anything else and those aren't generally considered to be anti-textual, are they? Is just that the courts mention of factors like having a large effect if the economy implies that there are non-textual factors at play?

    If so, it seems like there is a more textualist way to express major question doctrine: when interpreting grants of power in statutes, we ought to think about whether most readers at the time of the drafting would have thought that the grant was as broad as now claimed or whether most would have thought that the grant was more circumscribed, e.g. to the subject of the section where a catch-all clause might be found.

    In this case I find it hard to believe that a reader in 1973, would have interpreted "systems" to encompass implementing a cap and trade regime, rather than the more natural reading of referring to technological systems (where the expertise of the EPA might lie BTW). Here major question doctrine is just a help in getting to that correct and limited interpretation of the granting language.

    All that being said, I have not yet read the opinion (that's why I listen to AO :)), so perhaps there is a fatal flaw in this analysis-- but it was what I was thinking throughout the entire discussion on the podcast.

    I am curious to know what others think.

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  10. AHenry

    Isn't the issue with the EPA (and other agencies) even greater? Not only have they usurped the power of the legislative branch - with the blessings of the Congress, as you all point out, but they have also taken on determining who has violated their rules and what the punishment should be for those violations.

    So there is a massive concentration of the power of all three branches of government in these unelected agencies.

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