The U.S. Supreme Court has been on a tear lately, to put it mildly. It wasn't enough that the court's conservative majority upended a half-century of precedent by ending the constitutional right to abortion. It also expanded gun rights despite the ongoing trauma of mass shootings and gun violence.
The court followed that with a ruling that dealt a punishing blow to this nation's ability to combat climate change by curbing carbon emissions and shifting to renewable sources of power.
The ruling essentially holds that because Congress, in passing the Clean Air Act a half-century ago, did not explicitly give the Environmental Protection Agency that ability, it lacks that authority. In his majority opinion, Chief Justice John Roberts wrote that the agency had interpreted "newfound power in the vague language" of the Clean Air act even as he acknowledged the sensibility of the EPA's proposed action.
"Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible 'solution to the crisis of the day,'" Roberts wrote. "But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme."
Roberts' reasoning — such as it is — was taken to task by Justice Elena Kagan. In her dissent, Kagan pointed out that "The enacting Congress told EPA to pick the 'best system of emission reduction'" for the time. "In selecting those words, Congress understood — it had to — that the 'best system' would change over time. Congress wanted and instructed EPA to keep up."
That makes sense. What does not make sense is Congress micromanaging agency policies. Roberts has said that "significant" policy decisions must get specific congressional approval. But who determines what is significant or plausible? The court that already seems predisposed to leaving everything to a 50-state fight?
President Joe Biden, whose goal has been an emissions-free power sector by 2035, called the ruling "another devastating decision that aims to take our country backwards."
Indeed. Except even the Supreme Court is not powerful enough to take us back to a time before climate change started inflicting extreme weather events across the globe. Roberts knows full well that Congress is so badly split on climate change that it has been unable to move forward for decades, even as warnings from the scientific community mounted and evidence of climate change became undeniable.
Now, before Biden has even had a chance to formulate his version of a clean power plan, the court has stepped in to ensure that the political dogfight over climate change will continue unabated. At the same time, we plunge deeper into a crisis that soon may have no viable options.
The previous rulings on abortion and guns will have terrible consequences for many Americans. But this latest ruling carries implications for the entire world. Not only should the U.S. be leading on energy reforms; it has a special obligation to do so. Kagan noted that the U.S. is the world's second-largest annual emitter of greenhouse gases and is responsible for a more significant portion of historical emissions than any other nation.
Instead, Kagan wrote, the court "appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening."
Officials at the Minnesota Pollution Control Agency have said that the state will continue to make climate change a priority. But here, too, the Legislature is hampered by deep ideological divisions. This is not a crisis that any one state can tackle, nor even a single nation. It will take a concerted global effort, but it almost certainly cannot be done if the wealthiest country in the world is crippled in its ability to move forward.
Minnesota Sen. Tina Smith noted in a statement that a conservative majority court 15 years ago ruled correctly that the Clean Air Act could be the basis for regulating greenhouse gas emissions. That decision, she said, was reaffirmed in a unanimous 2011 opinion. The case, American Electric Power Co. v. Connecticut, stated that the Clean Air Act authorized the EPA to regulate carbon dioxide and other greenhouse gases as air pollutants.
Once again, this court has disregarded years of precedent, as it did in Roe. This time the reasoning rests on the fragile fulcrum of what the court alone determines to be plausible or significant. The ruling is a setback in ways we may not yet be able to comprehend.
