Established almost six years ago under the Obama Administration, the Clean Power Plan (CPP) was arguably the administration’s boldest move against anthropogenic climate change. The plan sets guidelines for each state to reduce carbon dioxide emissions from the nation’s power plants by installing more efficient coal-burning systems and making an overall shift toward cleaner, renewable methods of generating electricity. At the base of the Clean Power Plan is the Clean Power Act, which allows the Environmental Protection Agency (EPA) to determine the “best system of emission reduction” for each pollutant.
However, the CPP is facing its biggest challenge yet. Next month, the Supreme Court will hear arguments in West Virginia v. EPA, which, though relatively unknown outside of legal circles, will have serious ramifications should the EPA lose. The EPA’s job is to study changing technology, determine whether a breakthrough technlology should be adopted, and issue orders for power power plants to implement that technology through binding regulations. Thus, by losing this case, the EPA would lose much of its power to fight climate change and Congress’s ability to protect the environment would be severely inhibited. An environmental issue with implications this profound should not fall under the jurisdiction of nine justices; rather, qualified institutions like the EPA should be determine the course of action.
At the heart of this case is a conflict between a policy championed by the Obama Administration and one by the Trump Administration. During the Trump Administration, the EPA replaced the CPP with the Affordable Clean Energy (ACE) act. This act urged coal-powered plants to install new equipment to increase their efficiency, an approach that researchers concluded would have increased overall carbon dioxide emissions. Eventually, the U.S. Court of Appeals for the D.C. Circuit struck down the ACE, stating that it was based “on a mistaken reading of the Clean Air Act.”
The Clean Air Act relies on a structure of governance in effect throughout the federal legal system. Congress advances a broad policy — in this case, power plants that must use the “best system of emission reduction”— then delegates the task of implementing this policy to the EPA. Many other federal laws rely on this structure. The Affordable Care Act, for example, mandates that health insurers provide certain treatments for free, such as birth control, vaccinations, and cancer screens, and delegates the task of determining which treatments belong in this category to the Department of Health and Human Services. This type of system is ideal for several reasons. Delegating power to agencies ensures that decisions are made by professionals. This also protects important decisions from political interference. For example, the decision of whether or not to implement a new drug may become influenced by personal biases when lawmakers want the manufacturers to be in their home state, whereas the Food and Drug Administration (FDA) aims to be impartial.
Unfortunately, a majority of the Supreme Court is opposed to the idea that federal agencies should be allowed to set policies. At least five justices have indicated they want to revive a constitutional doctrine named “nondelegation,” which states that the Constitution limits Congress’s ability to delegate power to federal agencies. The Supreme Court doctrine has cited the doctrine only once, in 1935, to strike down New Deal policies that would have given President Franklin D. Roosevelt vast amounts of power. The nondelegation doctrine has remained dormant ever since. However, during the Obama Administration, the Supreme Court’s right flank began to advocate for limits on federal agencies’ authority. This approach could have profound implications for West Virginia v. EPA, as Congress might not have the power to delegate tasks to the EPA.
Congress has not passed a significant piece of environmental legislation since 1990. A nondelegation doctrine, especially for a case as significant as the West Virginia v. EPA case, could potentially endanger the planet’s future. Should the EPA lose this challenge, the Biden Administration and Congress’s abilities to implement effective environmental changes would be seriously hampered. With our current emissions continuing to climb and countries across the world still failing to meet the COP 26 goals of global net-zero emissions by mid-21st-century, this case is essential to the global fight against climate change and the future of our home.
