Supreme Court’s EPA ruling could put other regs in danger

The Supreme Court’s Thursday decision curtailing Environmental Protection Agency (EPA) authority could hamper regulations far beyond climate.

The conservative majority in the 6-3 ruling found that an Obama-era power plant rule was not permissible since it didn’t have “clear congressional authorization.”

But legal experts say this principle could be applied elsewhere, restricting the Biden administration from imposing other regulations in areas including health and consumer protections.

“If people think the federal government should be there to ensure that Americans have a basic level of health, safety and environmental protection, they should be very worried about these decisions,” said University of Michigan law professor Nina Mendelson. 

The high court’s ruling invoked a legal philosophy called the “major questions doctrine,” which posits that regulations of substantial national significance need to have clear authorization from Congress. 

This is not the first time the idea has popped up — it recently made an appearance in the court’s decision to block the Biden administration’s coronavirus vaccines-or-testing mandate for large employers.

But William Buzbee, a law professor at Georgetown, said that on Thursday, the Supreme Court took a new approach.

“It’s applying this doctrine more aggressively,” Buzbee said, pointing out that it was being used to curb the EPA’s authorities in an area where the agency actually has power and expertise. 

He also called the court’s move a “power grab” that will offer “artillery” for future arguments against regulations to address new problems. 

“It now means that in … every regulatory battle, people will cite this case and this doctrine as a particular set of hurdles that agencies have to overcome,” he said. 

John Yoo, a Bush administration Justice Department official who is now a nonresident senior fellow at the American Enterprise Institute, said that the major questions doctrine would now be a “permanent feature and restriction on regulation” following the ruling. 

“It really is now a significant change and addition to administrative law and the way the courts are going to patrol the administrative state,” Yoo said. 

Experts said that the case could both impact litigation for existing regulations and have a chilling effect on how agencies approach rulemaking going forward.

“This makes it more difficult for agencies to regulate, unquestionably,” Mendelson said, adding that rules on water protections, product safety and vehicle safety are among those that Thursday’s decision may jeopardize. 

“EPA has the authority to address water pollution, but that statute, like the Clean Air Act, is written in broad terms. A future court could decide that a particular EPA regulation to protect water quality is simply too major and invalidate it as illegal,” she said.

She added that under the doctrine, regulations that deal with new problems, or that deal with existing problems in new ways, will be most at risk.

“Existing regulations are not all safe, but the primary effect will be on regulations to address new problems or regulations to take new approaches to address existing problems,” Mendelson said. 

Yoo said that another area where the doctrine could be used is to block Title IX regulations that have implications for how universities handle sexual misconduct allegations. 

“I could see this court saying, ‘Nobody in Congress thought that gave the federal government the right to establish a code of student conduct for every single school in the country,’” he said. 

Others argued, however, that the larger regulatory impacts of Thursday’s decision could be somewhat limited. 

Scott Nelson, an attorney at the Public Citizen Litigation Group, pointed to language in the opinion that says that such scrutiny of congressional intent should be applied in “extraordinary cases” rather than ordinary ones.

“It definitely is going to impact regulatory litigation — that is, challenges to regulation,” Nelson said. 

But, he added, “if you take the court at its word … this remains a limited doctrine to be deployed in extraordinary cases.”

The court found that Congress did not authorize the EPA to induce a shift to cleaner energy sources using the approach sought by the Obama-era clean power plan. 

That plan, which aimed to lessen climate change, would have done so through “building blocks,” including working to ensure that less power comes from coal plants and more from “lower-emitting” natural gas plants and “zero-emitting” renewable energy sources. 

But while the court’s ruling limits how the EPA can tackle climate change from the country’s fleet of power plants, a number of other tools remain at its disposal. 

“Several options remain to cut the fleet’s pollution, including co-firing with natural gas, carbon capture and sequestration [and] efficiency improvements,” said Jay Duffy, an attorney with the Clean Air Task Force.