The Court’s Extremist Agenda to Dismantle 20th Century Gains

In a 6-3 decision delivered in June, the Supreme Court in West Virginia v. EPA severely limited the power of the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions. This decision will not only have catastrophic consequences for the environment; it will constrain government’s ability to successfully enact regulations across all areas. And it marks a critical juncture in a decades-long battle by the conservative legal movement to dismantle the modern administrative state.

The case involves the EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions from power plants. Under the authority vested in it by Section 111(d) of that statute, in 2015 the EPA issued a regulation titled the “Clean Power Plan,” which set limits on the amount of carbon pollution power plants are legally permitted to emit. In doing so, it devised a “generation-shifting” scheme that, in relevant part, shifts electricity production from high-emitting producers to lower-emitting producers. Implementation of this scheme would result in an overall reduction in greenhouse gas emissions.

The Court, however, ruled that Section 111(d) of the Clean Air Act does not grant the EPA the authority to formulate emissions caps based on the generation-shifting scheme EPA devised in the Clean Power Plan. In ruling so, the Court relied on the “major questions doctrine,” a judge-made legal doctrine arguing that courts should not defer to agency interpretations of statutes that involve questions of “vast economic or political significance” unless Congress  expressly grants them the authority to do so. The decision, as Justice Kagan pointed out in her dissenting opinion, makes the Court—rather than an expert agency comprised of environmental scientists—the decision-maker on climate policy. 

Climate disaster has already made irreversible, catastrophic changes to the earth as we know it. This decision will further exacerbate the climate crisis, granting ever greater power to the fossil fuel industry at the expense of our environment and our communities. To be sure, paths to regulate carbon emissions and to manage the climate crisis more broadly do remain in place, and there are several actions the Biden administration and the EPA can—and must—still take. But this case deals a significant blow to an already dire situation, and signals a bleak future for other actions the EPA may take to mitigate the climate crisis going forward.

While West Virginia v. EPA will clearly have a deleterious effect on the environment, the implications of the case go beyond the EPA’s authority to mitigate climate disaster. The major questions doctrine gives the Supreme Court veto power over any significant rulemaking the executive branch might undertake, even if Congress has already granted the agency broad powers to act. This would be a troubling power-grab by the Court under any circumstances, and is especially troubling given the plodding pace of congressional legislating, with multiple veto points even during a time of unified government. Requiring Congress to pass a law explicitly authorizing agency action on any Court-determined “major question” will, in practice, make it far less likely that the federal government can respond effectively to the challenges we face. 

The Court’s invocation of the major questions doctrine has occurred in other recent cases that have also undermined the power of the administrative state. In NFIB v. Department of Labor, for example, the Court relied on the theory to strike down the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard, which required certain employees to either be vaccinated or to take weekly COVID-19 tests and wear a mask while at work. That case significantly limited the Biden administration’s attempts to alleviate the dangers posed by the COVID-19 pandemic.

The Court’s apparent desire to dismantle the administrative state must not be viewed in a vacuum. West Virginia v. EPA comes at the end of a Supreme Court term replete with a slew of decisions that decimate some of our most cherished rights—most notably the right to bodily autonomy, which was severely restricted in the Court’s decision in Dobbs v. Jackson Women’s Health to overturn Roe v. Wade. These decisions are the culmination of a coordinated strategy by the conservative legal movement—and the broader conservative agenda—to undo the legal, social, and economic advances made in the 20th century. They are part of the far-right, antidemocratic movement’s platform to preserve and further entrench permanent minority rule.

As the decisions this term show, the current supermajority reactionary Court is set on rolling back the clock to a time when women, people of color , LGBTQIA+ folk, and poor people were second-class citizens. It seeks to dismantle the modern administrative state and curb government’s ability to enact regulations that would prevent corporations from destroying the environment. It inches closer and closer to the eradication of the separation of church and state. It continues to insulate law enforcement from accountability in the face of officer misconduct and blatant disregard for the rights of those accused of wrongdoing.

As the Supreme Court undermines the hard-fought advances and progress made throughout the last century, it points to ostensibly neutral methods of judicial and statutory interpretation and legal doctrines and theories that purportedly force it to reach the outcomes it does. The Court’s reliance on the major questions doctrine in limiting the EPA’s authority in West Virginia v. EPA, for example, is illustrative of this phenomenon. That doctrine gives unilateral authority to the Court to decide—in its own discretion—which issues are important enough to warrant the Court’s usurpation of agency actions. The decision to invoke this judge-made doctrine resulted in an outcome that limits the power of the administrative state—a conclusion that is wholly consistent with the ideology of the majority. 

This is not a new development—Supreme Court decisions often track closely with individual justices’ policy preferences. But as the court has drifted further and further to the right, the conservative justices appear increasingly comfortable with utilizing whichever doctrinal and interpretive vehicles will allow them to reach the outcomes they want. Any purported commitments to one school of jurisprudence or interpretation over another should be seen for what they really are—convenient tools that can be used as justifications to embrace or abandon a particular outcome consistent with the ideology of any given justice.

The Court’s raw exercise of political power this term to undermine egalitarian, multiracial democracy and restrict the administrative state is reminiscent of the activist Court that attempted to hamstring FDR’s New Deal. President Roosevelt’s fireside chat on the Supreme Court in 1937 can be instructive for our response today:

The Courts … have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions … During the past half century the balance of power between the three great branches of the Federal Government has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution.

FDR sought to use the full power of the federal government to solve the challenges of the day, and understood it as squarely within his role and responsibility to reshape the institutions of government to get there. 

Today’s leaders have something to learn from FDR’s legacy. They must confront this far-right Court, pass Court reform measures, and fight for their constituencies’ freedom and agency from reactionary forces. Our democracy and environment depend on it.