On Monday morning, the Supreme Court’s Republican-appointed justices deployed a series of made-up rules to override the Clean Air Act and hobble the Biden administration’s regulation of greenhouse gases. Their arguments, which dragged on for two hours, involved very big feelings but remarkably little law. The conservative bloc appears convinced that the federal government currently has little or no authority to regulate carbon emissions at coal-fired power plants. But this conviction is based on a subjective sense of what the Environmental Protection Agency should be able to do—not what Congress authorized it to do. So while the liberal justices asked about the words of the statute, their conservative colleagues searched for some reason why those words could not possibly mean what they say.
Monday’s case, West Virginia v. EPA, is the coal industry’s latest assault on federal restrictions of carbon emissions at coal-fired power plants. It began in 2015, when President Barack Obama’s EPA tried to limit these emissions through a regulation called the Clean Power Plan. The Supreme Court blocked the rule before it took effect. And in 2019, President Donald Trump’s EPA formally repealed the Clean Power Plan, declaring it illegal and replacing it with the Affordable Clean Energy rule. (This regulation did virtually nothing, which made the coal industry very happy.) But in 2021, a federal appeals court vacated both the Clean Power Plan and the Affordable Clean Energy rule. It held that Trump’s EPA relied on a mistakenly cramped reading of federal law. And it told the EPA to consider “afresh” to what extent it can restrict these emissions.
Here’s the upshot of that labyrinthine history: There is no current federal regulation limiting carbon emissions from existing coal-fired power plants. So, you might think, there is nothing for the Supreme Court to do—no controversy to resolve, no regulation to evaluate. There is only the prospect of a future regulation from President Joe Biden’s EPA. And the Supreme Court is not allowed to issue advisory opinions about hypothetical conflicts that may arise in the future.
But it seems the conservative justices are kept awake at night by the knowledge that someday, somehow, the government might attempt to regulate power plant emissions. There’s no other reason the Supreme Court would take up this case now, rather than wait for the Biden administration to give it an actual rule to invalidate.
West Virginia v. EPA is not a live legal dispute; it is a preemptive strike.
Which brings us back to its true target: the Clean Air Act, a landmark statute enacted in 1963 and amended many times since. When writing the law, Congress identified many specific pollutants that it wanted the government to control. It understood, however, that scientists would find new pollutants harmful to humans and the environment. So lawmakers directed the EPA to identify each emission from “stationary sources” like power plants that “causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” (Carbon definitely qualifies.) The EPA must then set an “achievable” emission standard for existing plants using “the best system of emission reduction.” States, not the federal government, get to determine how they’ll meet these new standards.
Technically, the fight in West Virginia v. EPA is over what counts as a “best system of emission reduction.” Obama’s EPA read the term broadly to encompass both direct limits on power plants and broader strategies to bring down overall emissions. A cap-and-trade program, for instance, doesn’t make every power plant cleaner, but it does reduce net carbon production. Increasing energy generation from renewables while decreasing generation from fossil fuels—an approach called “generation shifting”—achieves the same goal. The Trump administration, by contrast, read the statute narrowly. It insisted that the “best system of emission reduction” must apply at the source of the plant itself. So a scrubber would count, but a cap-and-trade system would not.
The coal industry, supported by Republican attorneys general, wants SCOTUS to adopt this crabbed interpretation of the Clean Air Act. Doing so would handcuff the EPA, preventing it from setting ambitious standards achievable through creative programs. There is a problem, though: As Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan explained over and over again on Wednesday, this limitation does not exist in the statute. The Clean Air Act speaks of a “system” of reductions, not a technological fix. Coal lawyers don’t just want to reinterpret the law; they want to rewrite it.
Most, if not all, of the conservative justices appear happy to oblige. During oral arguments, they deployed four fabricated “doctrines” or “canons” to replace the Clean Air Act’s text with a far narrower mandate. First, there’s the “clear statement rule”—the notion that, as Justice Brett Kavanaugh put it, “Congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance.” What qualifies as “vast economic and political significance”? No one knows. Second, there’s the “major questions doctrine”—the principle that only Congress, not a federal agency like the EPA, can resolve “major policy questions.” Third, there’s the “nondelegation doctrine,” the final boss of anti-textualism, which holds that Congress acts unconstitutionally when it delegates too much power to an agency. Finally, just for good measure, there’s the “federalism canon,” which bars agencies from issuing regulations that “upend” the “federal-state balance of power.”
Each of these rules was invented by conservative lawyers for the purpose of striking down regulations, even when they are authorized by Congress. Each of them is, at best, tenuously connected to the Constitution, resting on a subjective sense of the proper “separation of powers” (and the assumption that unelected judges get to enforce those judgments). On Monday, they all melted together into an unholy slurry. Chief Justice John Roberts suggested that a regulation violates this muck of manufactured doctrines if a judge is “surprised” when they read it. It was surprising when the Food and Drug Administration regulated cigarettes. It was surprising when the Centers for Disease Control and Prevention regulated evictions. If it feels like an agency has gone beyond its mandate, Roberts asked, shouldn’t the courts assume it broke the law?
This “no law, just vibes” approach got a big endorsement from Kavanaugh as well. Congress, he noted, “knows how to do cap-and-trade,” but didn’t pass a cap-and-trade measure for carbon. So why should the EPA get to suggest “squeezing” one “into an old statute that wasn’t necessarily designed for something like this?” Justice Sam Alito complained that the EPA was “reading a new interpretation into a long-dormant statute,” as if the Clean Air Act has a secret expiration date. The task fell on Solicitor General Elizabeth Prelogar and Beth Brinkmann, both ably defending the EPA’s power, to drag these justices back to the text and force them to confront the words on the page.
All six conservative justices have claimed to apply the law as written by interpreting the text alone. But these four mushy doctrines encourage judges to look far beyond the text—to congressional intent, to policy considerations, to their own feelings. Justices Clarence Thomas and Amy Coney Barrett have both endorsed variations of these principles, but on Monday, even they sounded confused about them. Justice Neil Gorsuch, a nondelegation obsessive, stayed mostly silent; perhaps he recognized that there was nothing to gain from wading into this constitutional quagmire.
It’s impossible to predict, on the basis of these arguments, how the court will rule. The smart bet remains that the conservatives will issue an advisory opinion radically diminishing the EPA’s ability to regulate carbon emissions at coal-fired power plants, strangling Biden’s climate agenda in the cradle. A bigger mystery is whether, in the process, a majority will unleash these various doctrines to run amok in the lower courts, hampering the entire administrative state from tackling the big problems of the day. Call this free-form style of judging “conservative” if you like. But none of us needs to pretend it’s textualism.