Thread by @cfishman

Today's decision sharply restricting EPA's ability to regulate greenhouse gases from power plants is fascinating.

First, two small but epic tidbits:

1. US power plants & energy companies achieved the GHG reductions EPA wanted *without the plan ever being put into law*!

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2/ Yes: The energy market in the US, the push for lower emitting sources & renewables — all that together reduced greenhouse gases by more than what the EPA was trying to achieve — and the Supreme Court never let EPA's plan go into effect.

What's that mean?

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3/ It means that the regulatory effort the EPA was trying to put into place couldn't have been particularly radical or disruptive — because the market leaped ahead of EPA and did it.

(It doesn't mean the plan wasn't necessary. More on that in a bit.)

4/ The 2nd amazing thing buried in this decision:

There is no regulation for Supreme Court to rule on.

This rule has such a complicated history (which speaks to how hard regulating a complicated economy is).

Obama EPA proposed it. It was challenged. Trump EPA withdrew it.

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5/ Then the Biden EPA withdrew the rule.

But it was already a 'case,' already being litigated.

So the Supreme Court — with a completely discretionary docket — decided to rule on the legality of EPA's GHG reduction plan — even though it no longer exists.

EPA withdrew the plan.

6/ So those 2 key facts frame what could turn out to be a dramatic SupCt decision:

The regulatory effort succeeded without being put in force — electric utilities moved to clean their electricity, to close coal plants, shift to clean energy, because regulation was coming.

7/ And, astonishingly, as the dissenting opinion puts it, today's decision is 'advisory,' because there is no rule or plan to overturn.

The Supreme Court ruled on EPA's authority 'in theory.' The Court really wanted to have its say on this question of EPA's authority.

8/ The decision — West Virginia v. EPA — is written by Chief Justice John Roberts, and it has what appears to be some of his classic efforts at focusing specifically on the question at hand.

(The decision overturning Roe, for instance, ranged far beyond what that case required.)

9/ For a great, thoughtful & accessible discussion of how Roberts always tries to find the middle while moving the Court & the country to the right — a kind of 'gradualist radical' — listen to this great Ezra Klein Show podcast with @Dahlialithwick …

nytimes.com/2022/06/26/pod…

10/ Roberts focuses specifically on a section of the Clean Air Act that gives EPA authority to manage power plant emissions.

Roberts, in short, concludes that the specific provision of the CAA only lets EPA issue regulations about how individual power plants operate.

11/ …EPA had authority to impose rules on each plant, to require technology to clean emissions from that plant.

But not to impose rules that looked across the broader electric generation grid of the US itself.

That could require 'generation shifting' — less coal, more solar.

12/ Roberts' decision for the court concludes that this is too sweeping a kind of rule. A different 'system' of rules than the Clean Air Act & Congress intended.

He invokes 'the major questions doctrine,' saying EPA needed 'specific authority' to do something so big.

13/ Elena Kagan, in a dissent joined by Breyer and Sotomayor, disagreed specifically about that.

The Clean Air Act provision was written broadly and without detail specifically to give the EPA latitude to tackle important problems of air pollution as they arose.

14/ Kagan notes that Congress would otherwise constantly have to revisit EPA authority & pollution rules as a kind of 'super EPA,' to make sure EPA had authority to implement rules w new technology or techniques, or as new problems arise.

And similarly with food, pharma, labor.

15/ As an amusing aside, Kagan says there is nothing in the entire Supreme Court's jurisprudence going back to 1789 called the 'major questions doctrine.'

Great Kagan dissent quote around the corner —>

16/ Writes Kagan: 'The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the 'major questions doctrine' magically appear as get out-of-text-free cards.'

Yes, they write that way to each other—in opinions.

17/ The mission of Roberts' majority decision limiting EPA's regulatory ability, says Kagan:

'Prevent agencies from doing important work, even though that is what Congress directed.'

18/ The majority decision wants Congress to be much more specific about what EPA should regulate, and how.

When the Clean Air Act was passed, regulating greenhouse gases was not a priority. That doesn't (necessarily) mean the CAA doesn't give EPA the authority to do that.

And…

19/ Congress itself has an instant remedy:

At any moment it thinks EPA is exceeding its authority — is regulating something Congress doesn't want regulated — Congress can order EPA to stop.

Congress is the original arbiter of its own authority, so to speak.

20/ So what's the big deal.

Yeah, we don't get to the 'big deal' until Tweet #20.

But you need to know what the decision says explicitly before we get to the big deal.

Here's the fear…

21/ The US does have a big administrative state. That's the government.

We regulate everything from the pace of engine maintenance on passenger jets to the pace of work in pork slaughterhouses — to what happens to the pig poop at those vast pig farms.

22/ Congress writes laws about airline regulations, food safety, workplace safety, how highways are designed and how new medicines are tested & approved.

But Congress doesn't get into the details. Because airplanes change, medicine changes, food production changes.

23/ If today's decision *just* limits the EPA's authority, on this one issue, with this one regulatory system of requiring companies to shift how they generate power — well, that wouldn't be a dramatic change for the gov't.

Congress can give EPA greenhouse gas authority.

But —>

24/ That's not how Chief Justice Roberts often works. He makes dramatic changes in US law & the US economy with steps.

The fear is that this 'major questions doctrine' will become a new cudgel to allow conservatives to fight all kinds of routine rules US agencies issue.

25/ Everyone — Democrats & Republicans, and especially business people — agree that regulations often slow things down.

It takes a long time to build a new bridge, a solar installation, a factory or pipeline.

We like safety. We don't like bureaucratic tangle.

26/ But what if every rule that comes out of a dozen US agencies can now be challenged w Roberts' new standard — that it's a 'major question' and that the agency — OSHA, DoE, Transportation — is exceeding what Congress intended?

We'll now have dozens of hair-splitting lawsuits.

27/ Roberts decision in EPA case did not go as far as some feared. It didn't overturn something called 'Chevron deference.'

That's a separate thread; that would have been the equivalent of overturning Roe.

But the fear is that Roberts' decision lays the scaffold to do that.

28/ Kagan closes her dissent calling the majority decision 'frightening.'

Kagan closing follows in two chunks:

'Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious:

'The stakes here are high…'

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29/ '…Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions.

'The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.'