On the last day of the term, the Supreme Court severely undermined the American people’s efforts to address climate change and protect the planet’s environment. In fact, the 6-3 majority in West Virginia v. EPA created a new legal doctrine that could make it much harder for any federal agency to effectively deal with pressing national problems. Even worse, they did it illegitimately, since there aren’t even any regulations in place for the Court to review.

It was a victory for businesses and their allies who see health and safety regulations as getting in the way of the corporate bottom line. Yet the harm to the rest of us is a bracing reminder to exercise our own power to reshape the Court every time we vote for the people who nominate and confirm our nation’s judges.

The EPA’s Efforts to Address Climate Change

In 2015, during the Obama administration, the EPA used its authority under the Clean Air Act to adopt the “Clean Power Plan” (CPP). The CPP regulated carbon emissions in an effort to address climate change. Based on its scientific expertise and experience, the EPA concluded that operational improvements at individual power plants would not be enough to cost-effectively address the problem. Instead, it needed to shift electricity generation from high-carbon-emitting sources to low-carbon-emitting ones. (Hence, CPP was called a “generation-shifting” plan.)

However, it never went into effect: In early 2016, the Supreme Court issued a 5-4 order blocking enforcement of the CPP while litigation against it was pending.

In 2019, the Trump-era EPA held that the CPP had been beyond the authority granted to the agency by the Clean Air Act. It formally repealed the CPP and replaced it with a less expansive plan called the “Affordable Clean Energy Rule.” But that, too, is not in effect: In early 2021, the D.C. Circuit ruled that the Trump administration’s decision was premised on a fundamental misinterpretation of the Clean Air Act.

So the issue went back to the Biden administration, which stated that it plans to develop its own set of regulations. The CPP has not gone into effect and never will. There is no longer any actual dispute before the courts. Nevertheless, the Supreme Court decided to hear an appeal of the D.C. Circuit case and consider the legality of a set of rules that will not be enacted. Harvard Law Prof. Richard Lazarus called the Court’s decision to hear the case “the equivalent of an earthquake around the country for those who care deeply about the climate issue.”

How the majority ruled

Chief Justice John Roberts wrote the opinion for the now-familiar 6-3 majority. He wrote that the Court still had a case to hear. Even though the Biden administration stated it will not be resurrecting the CPP, Roberts wrote that the EPA still might adopt some other generation-shifting plan. Therefore, he concluded that the Court could consider the issue.

That gave them the opportunity they have been looking for to limit agencies’ ability to adopt health and safety regulations. They classified this as an “extraordinary case” because the EPA had never before interpreted the Clean Air Act to allow a generation-shifting plan, and because the plan adopted had an enormous economic and political impact. That makes it what the majority called a “major question.” Roberts characterized precedents as requiring agencies addressing “major questions” to point to “clear congressional authorization” for their actions. Not surprisingly, the far-right justices did not find any such “clear authorization” in the Clean Air Act, because its grant of authority to the EPA is too general to be read that way.

What the dissenting justices said

Justice Elena Kagan wrote a dissent, joined by Justices Stephen Breyer and Sonia Sotomayor. She wrote that “there was no reason to reach out to decide this case” because no one is now subject to the CPP. The appropriate time for the Court to address the issues in this case will be when an administration adopts a rule implicating those issues. But “this Court could not wait—even to see what the new rule says—to constrain EPA’s efforts to address climate change.”

Kagan was equally critical of the “major questions” doctrine. Although the majority claimed to be following precedent, the dissent noted that “the Court has never even used the term ‘major questions doctrine’ before.”

In fact, precedents finding that an agency acted outside its authority have never been based on an artificial classification by the Court that the scope of the agency ruling is “extraordinary” in nature and therefore beyond the authority of the agency to act. Instead, they have used the “ordinary method” always used by the Court: reading a statute’s delegation of power to an agency “in context with a modicum of common sense.” If an agency is acting outside its usual field and addresses an issue where it has no viable claim of expertise or experience, that may signal that the agency is acting beyond the authority Congress gave it. Another warning sign would be if the agency’s action conflicts with or even “wreak[s] havoc” on “Congress’s broader design.”

Kagan wrote that the Clean Power Plan “falls within EPA’s wheelhouse.” In addition, it “fits perfectly” with the Clean Air Act’s directive for the EPA to select the “best system of emission reduction” for power plants.

The dissent criticizes the majority’s conclusion that the Clean Power Plan is simply too big a plan for Congress to have authorized without saying so specifically. That reasoning goes against the very purpose of agencies like the EPA:

A key reason Congress makes broad delegations like [in the Clean Air Act] is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.

What is the impact of the decision?

Kagan’s dissent summed up the immediate stakes:

The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb powerplants’ 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.

The far-right majority has severely undermined the EPA’s ability to meaningfully address climate change at a moment when we are running out of time to do so. The impact will be particularly harsh on those living in areas most severely impacted by the damage we are doing to our planet, including floods and droughts.

But the majority’s reasoning is not limited to the EPA or to climate change. The “major questions” doctrine gives powerful business interests a new legal weapon to use to sabotage important health and safety protections they oppose. And that can harm us all in any number of ways. It represents a step backward toward the era before the New Deal, when a different far-right majority regularly created legal doctrines to strike down health and safety protections.

What can we do?

The decision shows how important it is to change the makeup of the Court, which is a long-term project. Indeed, the first step occurred two hours after release of the decision when the extraordinarily qualified Justice Ketanji Brown Jackson took the oath of office, becoming the first Black woman on the Supreme Court. We can make the Supreme Court and all of our federal courts stronger by making judges a key issue when we vote for president and senators.

That strategy worked for the Far Right. Now it is our turn.