Kate and Leah break down the “free-wheeling, free association analysis” of the Supreme Court’s opinion in West Virginia v. Environmental Protection Agency. Basically, it’s bad! And not just because of the impending climate apocalypse!

TRANSCRIPT

Leah Litman: Hello and welcome back to Strict Scrutiny, your podcast about the world burning or really being burned by the Supreme Court of the United States, we’re your hosts. I’m Leah Litman.

Kate Shaw: And I’m Kate Shaw. And we’ve got a quick emergency episode for you today about the court’s major climate change case that also doubles as a broadside attack against administrative agencies and governance as we know it, because it’s a holiday weekend and we’re ready to party. So it’s.

Leah Litman: Independent of the last 200 years of American jurisprudence and governance. And yeah,.

Kate Shaw: This is just how we. This is how we celebrate Independence Day now? I think that’s exactly right.

Leah Litman: Okay. So today’s episode or really tonight’s episode is about West Virginia versus EPA. This is the case where the court uses its newly made up major questions doctrine to strike down a non-existent regulation because hashtag YOLO. And I just I just truly do think every single time a new opinion or order list appears on their Web page, it is basically more confirmation that this is the YOLO Court.

Kate Shaw: I feel like it’s a matter of time before one of the dissenting opinions actually contains an explicit reference to their YOLO colleagues. I mean, we’re not quite there yet, but do it, always do it, but we’ll keep doing it in the meantime. So we will probably come back to this case over the summer because there’s a lot to unpack in it. But as we have detailed previously, the case has this incredibly weird posture. And so let’s briefly just recap it. So during the Obama administration, the EPA announced the Clean Power Plan to reduce greenhouse gas emissions from power plants. Now, the Supreme Court stayed that rule prevented it from going into effect before a court of appeals decided whether the rule was lawful. And this was totally extraordinary. Okay. The Supreme Court had never reached out and put a rule on hold like this before. The rule had gone into effect and before it had been considered by the lower courts. And this was a54 order right by the conservative justices. And it gave a pretty clear sign of the court’s hostility to this regulation. But this was late in the Obama administration. And once the Trump administration took over, that administration tried to rescind the on Hold Clean Power plan and announce its own rules regarding climate.

Leah Litman: And the short version of those Trump administration rules is basically like a manifestation of this line from Batman about the Joker. Some men just want to watch the world burn.

Kate Shaw: Right. I said Trump Rules. It should have been like Unrules. Right they’re literally the opposite of what the rules traditionally do.

Leah Litman: Right? Because one of the Trump administration rules repealed the Clean Power Plan, and another rule stated the administration’s views that the Clean Air Act did not allow the EPA, the Environmental Protection Agency, to engage in so-called generation shifting rules, basically rules that said, you know, you power plants can use other methods of generating energy to satisfy this rule rather than reduce emissions from the current methods of generating energy that the plants use. So a rule that basically said you can comply with this rule by using solar power or wind power rather than coal. You know, that is what it means to be a generation shifting role.

Kate Shaw: So there’s a challenge to what the Trump administration has done, both its rescission of the Clean Power Plan rule and its own unruly rule. And the D.C. Circuit ruled both that the Trump administration had not validly rescinded the Obama era rule and also invalidated the Trump UN rule. But that is all around the time of the end of the Trump administration and the beginning of the Biden administration. And the Biden administration, after coming into power, said, look, we’re actually going to adopt our own rule. But before the Biden administration could do so, some GOP led states pulled out the playbook and asked the Supreme Court to review the case about the validity of the Trump era rules and including the Trump effort to rescind the Obama rule and to say. That the Biden administration couldn’t do. I am hesitating here because we have grasped throughout our discussion of this case to accurately convey what it is that is being requested. But it’s a pretty bizarro world that this case inhabits. But basically, these red states are asking the court to rule that the Biden administration can’t do some things that the red states expect the Biden administration to likely do. But the administration hasn’t actually done yet. The court in this case held that the Clean Power Plan, which again is not in effect and in fact has never been in effect and possible regulations that the Biden administration might enact are topics that courts should opine on, which is, you know, pretty hard to square with existing justice ability doctrine like doctrine about what kinds of cases the court can weigh in on. But, you know, why let any of that stand in the way of a good time?

Leah Litman: Exactly. So having concluded that, it will opine on the Clean Power Plan, which again, has never gone into effect and all of its metrics have been met at this point. So it doesn’t actually require power plants to do anything. So the court holds that the EPA did not have the authority under the Clean Air Act to adopt generation shifting rules like the Clean Power Plan under Section 11, a provision that authorizes the EPA to adopt the best systems for emission reduction. There’s a passage in the dissent by Justice Kagan that really calls to mind, you know, the odd procedural posture that you were just describing, Kate, where she says the court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. This court could not wait even to see what the new rule says to constrain EPA’s efforts to address climate change. That really called to mind language from Justice Sotomayor’s dissent in an earlier case that described the court as newly constituted and restless. And so I just thought that was notable.

Kate Shaw: Totally.

Leah Litman: Maybe we can just start out with a note about the consequences or fallout from this ruling. So Rachel Rothschild, who came on the podcast previously to discuss this case and is an environmental law and climate expert who will be joining the faculty at University of Michigan in, I think just like a week or maybe a day, 24 hours. Her appointment will be effective by the time you hear this podcast. So she unfortunately couldn’t join us today, but she did pass along this evaluation of the court’s ruling, which I’ll just share now. So Rachel says the decision certainly could have been worse. EPA can still issue regulations under Section 111 to address greenhouse gas emissions from power plants. The agency can also still regulate greenhouse gas emissions through other provisions of the Clean Air Act, such as those for cars and trucks. But at the same time, it’s important not to minimize how bad this decision is for addressing climate change. It is hard to see how EPA can now issue a regulation under Section 111 that will make significant progress on reducing emissions from power plants and pass muster with this court. And that is incredibly unfortunate, given the current stalemate in Congress on any new environmental legislation.

Kate Shaw: So it’s pretty bleak. And Rachel knows what she’s talking about. And this is really this opinion is going to have the effect of hamstringing the rulemaking process that the Biden administration is in, although by no means should the opinion be read to say they can’t or shouldn’t try. Right. To address emissions. But this court is really hostile. And it looks from reading this opinion as though if EPA tries to do anything remotely like what the Obama administration tried to do in the never actually, in effect, clean power plan, it won’t be allowed to do that.

Leah Litman: Which, by the way, is just notable because, you know, the states rush after the Supreme Court asking the court to stay this rule because the rule was just so impossible to comply with. It was going to put all of these businesses out of business. And it turns out that was just wildly overblown and not at all accurate. And so it’s just so dispiriting to think that the court said actually the agency can’t enact this regulation that, you know, we were going to meet anyways. Like the regulation was never even that aggressive.

Kate Shaw: But you would never know that from reading the characterization in the majority opinion, which we should say is a Chief Justice Roberts opinion, that really makes it sound as though these faceless bureaucrats, just guns blazing, decided to just refashion every aspect of the American economy and American life. And really, like this was not remotely like that. And exactly as you just said earlier, the targets were totally achievable inside of a decade, like there is already an overtaken set of objectives. And yet the kind of like ominous depiction for the early narrative of the opinion of this kind of extreme overreach on the part of EPA is kind of what Roberts and the majority want you to think. The agency. Was trying to do here. And it’s not as egregious as some of the court’s, I think, mischaracterizations of specific factual points in other opinions that we’ll talk about in our regular episode that’ll drop Monday. But it’s definitely a mischaracterization of the general scope and spirit of the Obama era regulation. Anyway, so how does this opinion by Chief Justice Roberts get to the conclusion that this Clean Power Plan and other generation shifting rules are illegal? It does that by solidifying and crystallizing what had been to date, passing statements in some cases about what the court refers to as the major questions doctrine, which was once upon a time like a footnote in administrative law classes and is basically now consuming Earth. I mean, I think that that’s essentially what does what has transpired over the course of about the last year. It was just as a reminder, the basis on which the court invalidated OSHA’s test or vacc policy, as well as the basis on which the court invalidated the CDC’s eviction moratorium. Both of these were statutorily well-grounded administrative action taken to address the COVID pandemic, and in both cases, the court said no. This made up doctrine called the major questions doctrine says you can’t agency. So in a63 opinion, here’s what the chief basically says about the major questions, doctrine and the inquiry here. He says, okay, there’s a statute. It confers authority upon an administrative agency. And when we’re trying to figure out whether the statute does give the agency the authority that it’s asserting, we have to have an inquiry that is shaped by the nature of the question presented. And our precedent teaches that there are extraordinary cases that call for a different approach, cases in which the history and the breadth of the authority that the agency has asserted, as well as the economic and political significance of the assertion, provide a reason to hesitate before concluding that Congress is meant to confer such authority. So in certain extraordinary cases, both separation of powers, principles, and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text. The delegation claimed to be looking there.

Leah Litman: In one other formulation. The majority opinion describes the CDC case as a measure that would, quote, certainly raise an eyebrow. And I guess this is another alternative formulation. It’s either in extraordinary cases or it’s in certain extraordinary cases, as you just read, or it’s in cases where it raises an eyebrow. And this is kind of how the chief justice had framed the major questions doctrine at the oral argument as well. So let’s play that clip.

CLIP: Why why doesn’t I think there’s some disagreement about how to apply it? Why why wouldn’t you look at it at the outset and say, as I think the court did, an FDA, you know, why is the FDA deciding whether, you know, cigarets are illegal or not? And then that is something that you look at while you’re reading the particular statute or whatever other things you look at when you’re trying to interpret a statute and see if it’s reasonable to suppose that. I mean, I just thinking back on Alabama realtors or the ocean vaccine case. I don’t know how you would read those as not starting with the idea that this however you want to phrase it, this is kind of surprising that the CDC is, you know, regulating evictions and all that and then look to see if there’s something in there, I guess, that suggests. Well, that, however surprised you. You know, that’s still what we think that type of regulation was was appropriate.

Leah Litman: I mean, what to think about this quote doctrine or quote law. Okay. I mean.

Kate Shaw: Do you remember when we previewed this case, we talked about the kind of the vibe ness of the entire oral argument, which was just like the chief seemed to be saying, like, here’s what you do. Close your eyes, think about an agency. Think about the first thing that pops into your mind. And is the agency trying to do something that aligns with that? That’s kind of what he’s saying here, right? Because he goes on to say, you know, we might not expect the Department of Homeland Security to make trade or foreign policy, even though doing so could decrease illegal immigration. No one would consider generation shifting a tool in OSHA’s toolbox. So he’s basically naming agencies and naming activities and saying the vibes of those agencies are not the vibes of doing those things. And it’s just like you shouldn’t you just be looking at a statute and asking whether the statute permits the agency to do what the agency is claiming it has the power to do? Here it is the most freewheeling free association analysis that it was in the oral argument and it is absolutely present in the opinion. And it is like it’s lawless. It feels really lawless.

Leah Litman: Statutes are for suckers, good vibes only. So maybe just a few quick observations about this. I do want to get to the Kagan dissent. This is, I guess, the narrow and limiting approach to just reviving the non delegation entirely, but it’s unclear how narrow it is or how limiting it is given that it’s completely judge empowering and just invites courts to ask like, do I think this is kind of a big deal or not? And in the hands of this court, it’s basically a Republican Party veto over like regulations created by a Democratic administration.

Kate Shaw: By definition, because it is structured to invalidate anything that is big and bold and will have significant impact. It is a fundamentally deregulatory doctrine that’s going to be wielded by this conservative super majority court. And any time you have a Democratic administration that wants to do big, bold, maybe novel, to quote Julia, policymaking, that’s going to just run squarely into the major questions doctrine because the court just doesn’t want to let agencies do anything. That’s I think, what this boils down to.

Leah Litman: I think that that’s exactly right. And, you know, the court says, well, this is a major regulation because we conclude, like this provision is ancillary. Not clear why that is correct. It says prior to 2015, there hadn’t been generation shifting rules. No, that’s not quite right either. But the court says the 2005 Bush administration regulation, you know, was controversial and a court never signed off on its validity. And it just claims this is a fundamental revision. Again, more normative hand-waving. We got an epic Kagan dissent that kind of reads, if you guys are going to let the planet burn, then I will fucking let you guys on fire. The opening of the dissent notes how the court has obstructed climate regulation, saying the court has obstructed EPA’s efforts from the beginning, noting the stay of the Clean Power Plan. She then explains why this major questions doctrine will kneecap agencies in the future, saying, We know that Congress delegates major decisions to agencies all the time and often via broadly framed provision, 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.

Kate Shaw: And to your kind of light, this on fire point. I feel like what she is saying here when she says, you know, giving the court does authority is really scary. She’s basically telling us, like, I know these fools in the majority, like we are in serious danger Earth. You are in serious danger. Like it’s not particularly veiled I don’t think.

Leah Litman: No. And like the implications of the major question doctrine are clear from this term. You know, this term the court has shut down now three administrative policies on the ground that they’re major on the theory that Congress must predict what a future court will say is major. And Justice Kagan also very memorably revisits her famous We Are All Textualist now line that she gave in a lecture at Harvard Law School. So she writes, Some years ago, I remarked that we’re all textualist. Now, it seems I was wrong. The current court is textualist only when being so suits it, and that method would frustrate. But her goals special canons like the major questions doctrine, magically appear as get out of text free cards. The anti administrative state stance shows up in the majority opinion. I mean, I love this. I think she is really calling to mind, you know, something that former White House counsel Don McGahn made explicit that the Trump administration’s judicial appointments were the other side of the coin to their deregulatory agenda, and that is paying off dividends time and time again.

Kate Shaw: Yeah, we should briefly mentioned the Gorsuch concurrence. So he’s joined by Alito. It’s as obnoxious as you would predict. It’s like he’s kind of like, I’m cool with the major question doctrine because it is basically non delegation and it struck me as a smug and kind of unnecessary victory lap in which Gorsuch just kind of like.

Leah Litman: Smug and unnecessary Kate. I never I never.

Kate Shaw: I was totally redundant to even like, say, a Gorsuch opinion and smug and unnecessary. But he sort of admits that he made all of this up. So he has been like this key driver of the major questions doctrine. And he kind of wants to remind us of that and basically says we can make these rules up to enforce constitutional principles, just the ones we like, like the non delegation doctrine. And therefore it is fine and not judicial willfulness and lawlessness, but obviously it’s pretty unconvincing exercise.

Leah Litman: So the concurrence also evinces a trend that Melissa, our co-host, has really been on the forefront of pointing out something we’ve called CRT, SCOTUS, where the court seemingly evokes a concern for racial justice and racial equity in order to advance its conservative agenda. So in a footnote in the Gorsuch concurrence, Justice Gorsuch notes how Woodrow Wilson was kind of, you know, a leading proponent of administrative expert agencies. And he then goes on to note that Woodrow Wilson denounced. Immigrants from the south of Italy and men of the meaner sort out of Hungary and Poland again associating the project of administrative governance with racism.

Kate Shaw: With Wilson having been a racist, which she was, and it’s just like an amazing stretch. It doesn’t even really try to connect. No. You know, apart from at the very highest level of generality, the questions in this case to Wilson. And yet it does seem like a pretty ominous signal of these kind of very, very serious efforts that are underfoot to discredit, writ large the administrative state. And I think that, yes, exactly as you suggested, that Melissa has identified very broadly, including in this new piece in Mother Jones this week, just the broad array of legal questions on which Thomas initially, but obviously Gorsuch and Alito in this opinion are joining him, have pressed this racial justice arguments to defend extremely conservative and here deregulatory objectives. So I think this is important evidence that that is very much a continuing and important trend. So we’re going to have lots more to say about this case in our term wrap up, which is going to drop next week and probably more over the summer. But that’s all we have time for today, so we’re going to leave it there.

Leah Litman: The Supreme Court’s attack on environmental protections has dramatically weakened the power of federal agencies to fight climate change and regulate greenhouse gas emissions. On this week’s Hot Take, climate essayist Mary Annaïse Heglar and Amy Westervelt provide a history of legislation against climate policy and what it means for the worsening climate crisis. And I joined them to discuss the Supreme Court decision. Listen to new episodes of Hot Take every Friday wherever you get your podcasts. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell Audio Engineering by Kyle Seglin Music by Eddie Cooper. Production Support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and Summer Intern support from Anoushka Chander.