A series of Supreme Court rulings over the past two years have severely weakened the Environmental Protection Agency’s power to limit air and water pollution, regulate the use of toxic chemicals and reduce greenhouse gases that warm the planet.
The Supreme Court’s conservative supermajority has issued a number of decisions that have weakened the power of many federal agencies.
But the EPA has been under particular fire, the result of a series of lawsuits filed since 2022 by conservative activists who say its regulations have driven up costs for industries ranging from electric utilities to residential construction. Those arguments resonated with judges skeptical of government regulation.
On Friday, the court ended the use of the so-called “Chevron doctrine,” a cornerstone of administrative law for 40 years that says courts should defer to government agencies’ interpretations of unclear laws.Threatens the authority of many federal agencies Regulating the environment, healthcare, workplace safety, telecommunications, the financial sector, and more.
But even more striking is the court’s numerous decisions to intervene and block environmental regulations before lower courts have ruled or even before the executive branch has implemented them.
The court said Thursday that the EPA cannot limit smokestack pollution from crossing state lines under a measure known as the “good neighbor rule,” taking the surprising step of intervening in the case while the litigation is still pending in the U.S. Court of Appeals for the District of Columbia Circuit.
Last year, the court also took the unusual step of preliminary Overturned a proposed EPA rule The law, known as “Waters of the United States,” is designed to protect millions of acres of wetlands from pollution and is in effect before regulations are finalized.
Similarly, in a 2022 challenge to the EPA’s climate proposal, the Clean Power Plan, the court Severely limits the agency’s ability to regulate greenhouse gas emissions Although the regulation has not yet come into effect.
There is little precedent for such an intervention. Typically, the Supreme Court is the last venue to hear a case after lower courts have argued and issued a decision.
“The courts have shown an interest in shaping the law in this area and have no patience for waiting for cases to go through the courts first,” said Kevin Minoli, a lawyer who served as general counsel for the EPA from the Clinton administration to the Trump administration. “They’ve been very aggressive in adjudicating. It’s like, we’re going to tell you the answer before you ask the question.”
Taken together, the decisions not only jeopardize many existing environmental rules but could also prevent future governments from enacting new ones, experts say.
“These are some of the worst environmental law decisions the Supreme Court has ever made,” said Ian Fein, a senior attorney at the advocacy group Natural Resources Defense Council. “They both severely weaken the federal government’s ability to enforce the laws that protect us from polluters.”
The march of environmental cases isn’t over: The court has agreed to hear a case next term that could limit the scope of the National Environmental Policy Act, a 1970 law that requires federal agencies to analyze whether their proposed projects will have environmental impacts. Businesses and industries have long complained that the reviews can take years, inflate costs and are used by community groups to block projects.
For industry coalitions, conservative advocacy groups and Republican attorneys general and their campaign donors, the recent decision is A multi-year strategy for using the judicial system to influence environmental policy.
Many of the petitioners in these cases overlap, including Republican attorneys general from at least 18 states, the National Mining Association, the American Petroleum Institute and the U.S. Chamber of Commerce.
The Pacific Legal Foundation, the lead plaintiff in last year’s wetland protection case, is part of a network of conservative research groups that has received funding from billionaire Charles Koch, chairman of the petrochemical company Koch Industries and a champion of anti-regulatory causes.
“There’s a lot more coordination now than there used to be, with states and trade groups forming alliances to change administrative law,” said Damien M. Schiff, a lawyer at the Pacific Legal Foundation. “The trade groups, the chamber of commerce, the Pacific Legal Foundation, we’re very intentional about taking on cases that we hope to win in a precedent-setting way. The strategy and the tactics are the same. It’s all internal coordination.”
Schiff said the Supreme Court has “demonstrated a greater willingness to exercise its authority earlier in the process.”
The plaintiffs are also strategizing for the future.
President Biden has pledged that the U.S. will cut carbon dioxide pollution in half by 2030 and eliminate it by 2050. Scientists say all major economies must do that if the world is to avoid the deadliest and costliest impacts of climate change. This year, the EPA rushed to finalize new rules to cut car, truck, power plant and Methane leak From oil and gas wells.
If Biden wins a second term, he hopes to reduce Heavy industries such as steel and cement These countries have never been required to reduce emissions that cause global warming.
But a recent string of defeats in the Supreme Court could make it harder for the EPA to follow through on those plans.
“Environmental law has been continually eroded,” said Patrick Parenteau, an environmental law expert at Vermont Law School. “These decisions mean that if Biden is re-elected, he won’t be able to do much else on the environment, especially on climate.”
Christine Todd Whitman, a Republican and former New Jersey governor who served as EPA administrator during the George W. Bush administration, said environmental regulations sometimes go too far and need to be tempered by the courts. But she said the recent Supreme Court ruling is a worrisome new precedent.
“I’m very upset with what this radical conservative court is doing right now, trying to implement a political agenda,” Whitman said. “They’re looking for an opportunity to make a statement. They’re bypassing and undermining institutions. It’s almost as if their attitude is, all regulations are bad, and we’re going to stop them before they go too far.”
This, she said, would have harmful consequences.
“If you don’t have clean air and clean water, there’s a huge cost,” Ms. Whitman said. “It puts a lot of lives at risk.”
For example, court decisions limiting the EPA’s authority to manage wetlands and so-called seasonal streams mean Half of the nation’s wetlands could be polluted or paved over without federal penaltieswhich could endanger thousands of species of plants and animals. New research shows that court decisions It also leaves major U.S. river basins vulnerable to pollution.
Carrie Severino, president of the Judicial Crisis Network, said in a statement that these legal rulings correctly shift decision-making power with significant economic impacts from the executive to the legislative branch.
“For too long, unaccountable bureaucrats in Washington, D.C., have imposed destructive regulations that harm farmers, fishermen, and countless small business owners struggling in a global economy,” she said. “The Supreme Court has an opportunity to restore accountability to this process by placing power back in the hands of Congress.”
On that last point, environmentalists and conservatives say they agree: If the federal government wants to protect the environment, Congress should update existing laws and pass new legislation.
The United States’ most fundamental environmental laws, the Clean Air Act and the Clean Water Act, were both enacted more than 50 years ago, before climate change and the global economy reshaped the environmental and economic landscape.
Since then, Congress has passed a major law to combat climate change, the Inflation Reduction Act of 2022. The bill includes more than $370 billion in incentives for clean energy technologies, including wind, solar and electric vehicles. Climate experts call it a first step toward cutting the nation’s emissions, but say more will be needed to completely eliminate them within the next 25 years.
“For more than 30 years, agencies have needed to use old, existing laws to respond to new environmental problems,” said Michael Gerard, director of Columbia University’s Sabin Center for Climate Change Law. “And now this new court makes that incredibly difficult. Agencies can’t act unless Congress comes up with very specific rules. But because Congress is largely powerless, that in turn freezes what they can do.”
