"I CANNOT THINK OF MANY THINGS MORE FRIGHTENING": THE SUPREME COURT HAS DECLARED WAR ON GOVERNING
One of Justice Antonin Scalia’s final acts before his death in 2016 was also one of his most breathtaking: joining with four other conservative justices to block implementation of the Clean Power Plan, then president Barack Obama’s ambitious effort to regulate carbon emissions from coal-fired power plants ahead of the Paris climate agreement. That decision was unprecedented not just because the justices didn’t bother to explain their reasoning, but also because the high court had never before stopped a regulation dead in its tracks as legal challenges to it were pending, let alone in an area of federal policy that could likely make or break the planet.
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Because that mandate to ensure the nation’s air is breathable is clear, Obama’s Clean Power Plan sought to regulate power plants under it and nudge them from dirty, fossil fuel-reliant sources of energy, like coal, to cleaner ones, including natural gas, solar, and wind energy—with these last two sources taking precedence. That plan was not to be: A number of Republican-led states, industry groups, and coal companies sued to block its implementation, and the rest is Supreme Court history: Scalia, Chief Justice John Roberts, and justices Anthony Kennedy, Clarence Thomas, and Samuel Alito blocked it from taking effect. By the time the Trump administration came around and rolled back the plan, its ambitions never materialized. And so it’s not binding on anyone. And the Biden administration is in the process of formulating a more modern, capacious rule, but it’s not final yet.
So where does this leave this “restless and newly constituted” Supreme Court, as Justice Sonia Sotomayor called her reactionary colleagues a few weeks ago? Precisely where one might predict, deciding the issue anyway—and hobbling the way the EPA can conduct unfinished work. To this majority, curbing carbon dioxide emissions at power plants is simply not something the federal government can do under existing law. If Congress wants the EPA to go that route to help slow down global warming, lawmakers just need to give that authority much more specifically than they did all those years ago with the Clean Air Act. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Roberts wrote for the majority.
The three liberal justices, as they did when their counterparts ruled that the Biden administration’s labor secretary and occupational safety regulator didn’t have the authority to impose a vaccine-or-test requirement on large employers, saw right through this power grab. Long an expert in administrative law, Justice Elena Kagan, joined by Sotomayor and Breyer, put the court’s overstep in its proper light. “The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering,” she wrote. “That new rule will be subject anyway to immediate, pre-enforcement judicial review. But this Court could not wait—even to see what the new rule says—to constrain EPA’s efforts to address climate change.”
https://www.vanityfair.com/news/2022/06/supreme-court-has-declared-war-on-governing-climate-change-epa
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