Supreme Court to hear a case that could limit the EPA's power to fight climate change

Supreme¹ Court to hear a case that could limit the EPA's power to fight climate change

Transcript²

The U.S. Supreme Court hears arguments Monday in a major environmental case that could hobble the ability of federal agencies to regulate air pollution — and potentially, much more.

The case has been years in the making. It began in 2009 when the Obama administration faced an unpleasant reality. Climate change is a problem too big to address without an international agreement, but "the other nations would not do anything unless the Unites States went first, and showed it was serious," says environmental law professor Richard Lazarus.

So, the Obama administration set about doing that, first getting the auto³ industry to reduce carbon emissions⁵, and then addressing the country's single largest carbon emissions problem—coal fired power plants. Instead of regulating the plants themselves, the Environmental Protection Agency set strict carbon limits for each state and encouraged the states to meet those limits by transitioning to alternative sources of energy—wind, solar, hydro-electric, and natural gas. The goal of the plan was to produce enough electricity to satisfy U.S. demand in a way that lowered greenhouse emissions.

The legal fight continues

The concept worked. Indeed, it worked so well, that even after Obama's Clean Power Plan was temporarily blocked by the Supreme Court and repealed⁶ by the Trump⁷ administration, market forces still continued the trajectory⁸. Most utilities continued to abandon coal because it is too expensive. As the Sierra Club's Andres Restrepo observes, the EPA initially⁹ projected that it would reach the targeted emission⁴ reductions under the plan by 2030, but "even without the regulation in place, the industry achieved that level of reductions in 2019, 11 years early."

That, however, didn't stop the coal industry, West Virginia, and 16 other states from continuing their fight against the now-defunct Obama plan. Presumably, they did that to prevent the plan from being resurrected.

The states and the coal industry appealed to the Supreme Court last year. The Biden administration, fearing a disastrous¹⁰ ruling, "unilaterally surrendered the Clean Power Plan" and pledged to write a new rule that would regulate only the coal fired plants themselves, says Harvard's professor Lazarus. "They buried it, and they told the court it's gone. There is no more case."

But the court, in an unusually muscular assertion of power, agreed to review the now-revoked plan. It is no secret why. To one degree or another, the court's six-justice conservative supermajority has been itching¹¹ to limit the power of regulatory agencies, and potentially even the power of Congress.

Implication for other federal agencies

In recent cases, the conservative court majority has begun to outline something it calls the "major questions doctrine¹²," which could hamstring the authority of all agencies, from the EPA to the Securities and Exchange Commission to Federal Reserve Board.

In general, it is far less deferential¹³ to agencies than the court's previous case law suggested. Specifically, the major questions doctrine requires Congress to specifically authorize¹⁴ new policies or directions, even when the language of a statute¹⁵ gives an agency broad power. The question is, "has Congress spoken clearly enough to tell a federal agency that you can create a program that has substantial effects on the American economy," explains Tom Johnson, a lawyer who previously¹⁶ worked for West Virginia in its opposition¹⁷ to the Clean Power Plan.

Here, Johnson argues, the EPA went too far "reshaping the energy economy by determining what mix of clean power and coal-operated power we should have." It did so with a powerful stick; the Clean Power Plan set emissions caps below what was economically feasible, essentially¹⁸ coercing¹⁹ coal-fired plants to invest in alternative energy sources, he says.

Congress could be hobbled, too

But the major questions doctrine is not the only new twist that some of the court's conservatives have advocated. Another is something called the non-delegation²⁰ doctrine. As some conservatives see things, Congress is quite limited in how much regulatory power it can give to agencies.

Jonathan Brightbill, an environmental lawyer who previously represented the Trump administration in the case, summarizes the outer edges of the nondelegation argument—namely that Congress cannot delegate unlimited²¹ power to executive agencies, no matter what the circumstances are. After all, he points out, "ours is a constitutional system," and the Constitution places legislative²² power in hands of representatives in Congress—not unelected executive agencies.

That point was initially made by Justice Clarence Thomas in a 2001 case, an EPA case no less. But no other justice joined his opinion. Even Justice Antonin Scalia, a conservative icon²³, rejected the non-delegation argument. Scalia's majority opinion greenlit delegation of broad regulatory authority as long as Congress guides the agency with an "intelligible²⁴ principle."

But in 2019, Trump appointee Neil Gorsuch, sought to resuscitate²⁵ Thomas's non-delegation argument in an opinion joined by Chief Justice John Roberts. They argued that the Founders²⁶ rejected the idea that Congress could delegate its powers.

Law professors Nicholas Bagley and Julian Davis Mortenson have disputed this reading of history after an exhaustive examination of the debates at the founding.

"To the extent that we have evidence about what the Founders thought about the non-delegation doctrine, the evidence cuts pretty hard in the direction that they thought there wasn't any such thing," said Bagley in a recent episode of the podcast Strict Scrutiny²⁷.

Professor Lazarus, for his part, worries that severely²⁸ limiting Congress's delegation powers would create a dysfunctional system of governance. He points out that, like the Clean Air Act at issue in this case, many statutes²⁹ use "broad and capacious language" to authorize federal agencies to regulate commerce, health, and safety. These constitutional delegations³⁰ were permissible³¹ when these laws were passed, but now, decades later, the Supreme Court seems to have changed its mind.

Taken to the extreme, the major questions and non-delegation doctrines³² could debilitate³³ the federal agencies. For example, the Federal Reserve's power to set interest rates is certainly a power of "vast political and economic significance," Lazarus observes. Must Congress act every three months to review interest rates?

Lazarus doesn't think the court will go that far.

"At some point the court will find equilibrium," he says, "but that's going to be a time from now" and, when it comes to climate change, we are running out of time.

1 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

2 transcript   

n.抄本，誊本，副本，肄业证书

参考例句：

• A transcript of the tapes was presented as evidence in court.一份录音带的文字本作为证据被呈交法庭。
• They wouldn't let me have a transcript of the interview.他们拒绝给我一份采访的文字整理稿。

3 auto   

n.(=automobile)(口语)汽车

参考例句：

• Don't park your auto here.别把你的汽车停在这儿。
• The auto industry has brought many people to Detroit.汽车工业把许多人吸引到了底特律。

4 emission   

n.发出物，散发物；发出，散发

参考例句：

• Rigorous measures will be taken to reduce the total pollutant emission.采取严格有力措施，降低污染物排放总量。
• Finally,the way to effectively control particulate emission is pointed out.最后，指出有效降低颗粒排放的方向。

5 emissions   

排放物( emission的名词复数 )； 散发物（尤指气体）

参考例句：

• Most scientists accept that climate change is linked to carbon emissions. 大多数科学家都相信气候变化与排放的含碳气体有关。
• Dangerous emissions radiate from plutonium. 危险的辐射物从钚放散出来。

6 repealed   

撤销，废除( repeal的过去式和过去分词 )

参考例句：

• The Labour Party repealed the Act. 工党废除了那项法令。
• The legislature repealed the unpopular Rent Act. 立法机关废除了不得人心的租借法案。

7 trump   

n.王牌，法宝；v.打出王牌，吹喇叭

参考例句：

• He was never able to trump up the courage to have a showdown.他始终鼓不起勇气摊牌。
• The coach saved his star player for a trump card.教练保留他的明星选手，作为他的王牌。

8 trajectory   

n.弹道，轨道

参考例句：

• It is not difficult to sketch the subsequent trajectory.很容易描绘出它们最终的轨迹。
• The path followed by a projectile is called its trajectory.抛物体所循的路径称为它的轨道。

9 initially   

adv.最初，开始

参考例句：

• The ban was initially opposed by the US.这一禁令首先遭到美国的反对。
• Feathers initially developed from insect scales.羽毛最初由昆虫的翅瓣演化而来。

10 disastrous   

adj.灾难性的，造成灾害的；极坏的，很糟的

参考例句：

• The heavy rainstorm caused a disastrous flood.暴雨成灾。
• Her investment had disastrous consequences.She lost everything she owned.她的投资结果很惨，血本无归。

11 itching   

adj.贪得的，痒的，渴望的v.发痒( itch的现在分词 )

参考例句：

• The itching was almost more than he could stand. 他痒得几乎忍不住了。 来自《现代汉英综合大词典》
• My nose is itching. 我的鼻子发痒。 来自《简明英汉词典》

12 doctrine   

n.教义；主义；学说

参考例句：

• He was impelled to proclaim his doctrine.他不得不宣扬他的教义。
• The council met to consider changes to doctrine.宗教议会开会考虑更改教义。

13 deferential   

adj. 敬意的，恭敬的

参考例句：

• They like five-star hotels and deferential treatment.他们喜欢五星级的宾馆和毕恭毕敬的接待。
• I am deferential and respectful in the presence of artists.我一向恭敬、尊重艺术家。

14 authorize   

v.授权，委任；批准，认可

参考例句：

• He said that he needed to get his supervisor to authorize my refund.他说必须让主管人员批准我的退款。
• Only the President could authorize the use of the atomic bomb.只有总统才能授权使用原子弹。

15 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

16 previously   

adv.以前，先前（地）

参考例句：

• The bicycle tyre blew out at a previously damaged point.自行车胎在以前损坏过的地方又爆开了。
• Let me digress for a moment and explain what had happened previously.让我岔开一会儿，解释原先发生了什么。

17 opposition   

n.反对，敌对

参考例句：

• The party leader is facing opposition in his own backyard.该党领袖在自己的党內遇到了反对。
• The police tried to break down the prisoner's opposition.警察设法制住了那个囚犯的反抗。

18 essentially   

adv.本质上，实质上，基本上

参考例句：

• Really great men are essentially modest.真正的伟人大都很谦虚。
• She is an essentially selfish person.她本质上是个自私自利的人。

19 coercing   

v.迫使做( coerce的现在分词 )；强迫；（以武力、惩罚、威胁等手段）控制；支配

参考例句：

• All of the children had atopic dermatis coercing at least 20% of their body surface area. 所有的患儿体表有超过20%的遗传性过敏症皮炎感染。 来自互联网
• I assured him that we had no intention of coercing Israel in response a Soviet threat. 我向他保证，我们无意强迫以色列对苏联的威胁做出反映。 来自互联网

20 delegation   

n.代表团；派遣

参考例句：

• The statement of our delegation was singularly appropriate to the occasion.我们代表团的声明非常适合时宜。
• We shall inform you of the date of the delegation's arrival.我们将把代表团到达的日期通知你。

21 unlimited   

adj.无限的，不受控制的，无条件的

参考例句：

• They flew over the unlimited reaches of the Arctic.他们飞过了茫茫无边的北极上空。
• There is no safety in unlimited technological hubris.在技术方面自以为是会很危险。

22 legislative   

n.立法机构，立法权；adj.立法的，有立法权的

参考例句：

• Congress is the legislative branch of the U.S. government.国会是美国政府的立法部门。
• Today's hearing was just the first step in the legislative process.今天的听证会只是展开立法程序的第一步。

23 icon   

n.偶像，崇拜的对象，画像

参考例句：

• They found an icon in the monastery.他们在修道院中发现了一个圣像。
• Click on this icon to align or justify text.点击这个图标使文本排齐。

24 intelligible   

adj.可理解的，明白易懂的，清楚的

参考例句：

• This report would be intelligible only to an expert in computing.只有计算机运算专家才能看懂这份报告。
• His argument was barely intelligible.他的论点不易理解。

25 resuscitate   

v.使复活，使苏醒

参考例句：

• A policeman and then a paramedic tried to resuscitate her.一名警察和一位护理人员先后试图救活她。
• As instructed by Rinpoche,we got the doctors to resuscitate him.遵照仁波切的指示，我们找来医生帮他进行急救。

26 founders   

n.创始人( founder的名词复数 )

参考例句：

• He was one of the founders of the university's medical faculty. 他是该大学医学院的创建人之一。 来自辞典例句
• The founders of our religion made this a cornerstone of morality. 我们宗教的创始人把这看作是道德的基石。 来自辞典例句

27 scrutiny   

n.详细检查，仔细观察

参考例句：

• His work looks all right,but it will not bear scrutiny.他的工作似乎很好，但是经不起仔细检查。
• Few wives in their forties can weather such a scrutiny.很少年过四十的妻子经得起这么仔细的观察。

28 severely   

adv.严格地；严厉地；非常恶劣地

参考例句：

• He was severely criticized and removed from his post.他受到了严厉的批评并且被撤了职。
• He is severely put down for his careless work.他因工作上的粗心大意而受到了严厉的批评。

29 statutes   

成文法( statute的名词复数 )； 法令； 法规； 章程

参考例句：

• The numerous existing statutes are complicated and poorly coordinated. 目前繁多的法令既十分复杂又缺乏快调。 来自英汉非文学 - 环境法 - 环境法
• Each agency is also restricted by the particular statutes governing its activities. 各个机构的行为也受具体法令限制。 来自英汉非文学 - 环境法 - 环境法

30 delegations   

n.代表团( delegation的名词复数 )；委托，委派

参考例句：

• In the past 15 years, China has sent 280 women delegations abroad. 十五年来，中国共派280批妇女代表团出访。 来自汉英非文学 - 白皮书
• The Sun Ray decision follows the federal pattern of tolerating broad delegations but insisting on safeguards. “阳光”案的判决仿效联邦容许广泛授权的做法，但又坚持保护措施。 来自英汉非文学 - 行政法

31 permissible   

adj.可允许的，许可的

参考例句：

• Is smoking permissible in the theatre?在剧院里允许吸烟吗？
• Delay is not permissible,even for a single day.不得延误，即使一日亦不可。

32 doctrines   

n.教条( doctrine的名词复数 )；教义；学说；（政府政策的）正式声明

参考例句：

• To modern eyes, such doctrines appear harsh, even cruel. 从现代的角度看，这样的教义显得苛刻，甚至残酷。 来自《简明英汉词典》
• His doctrines have seduced many into error. 他的学说把许多人诱入歧途。 来自《现代汉英综合大词典》

33 debilitate   

v. 使衰弱

参考例句：

• Stewart took over yesterday when Russell was debilitated by a stomach virus.昨天拉塞尔因肠胃病毒感染身体不适，由斯图尔特暂时接手。
• Their efforts to debilitate the political will of the Western alliance came to nought.他们试图削弱西方联盟的政治决心的努力结果等于零。