US Supreme Court Votes to Cook the Planet by Limiting EPA’s Power

Source: US Supreme Court Votes to Cook the Planet by Limiting EPA’s Power

Elena Kagan Dissent is Abundantly Clear :

…Reading the decision is difficult because they are twisting and turning to make their point, but in her scathing dissent, Justice Elena Kagan is clear as a bell, and we are going to let her write most of the rest of this post.

She started with a bang: “Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to the most pressing environmental challenge of our time.”¹

Noting the dangers of climate change and its origin from carbon dioxide emissions, she continued: 

“Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil-fuel-fired power plants. Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that ’causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare.’ Carbon dioxide and other greenhouse gases fit that description.”¹

She noted how the court had already obstructed the Obama-era Clean Air Plan. And even though it was obsolete and essentially dead, “this Court determined to pronounce on the legality of the old rule anyway” and “there was no reason to reach out to decide this case.”¹ 

Kagan said precedent shows that the EPA has the right to regulate, and used an interesting precedent: tobacco. The industry used the same strategy and the Supreme Court rejected it.

One of the arguments that the majority made—or should we say made-up—is the “major questions doctrine” where something of critical importance should be referred back to Congress. Kagan wrote: 

“Special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.”¹

And it goes against history; the delegation of authority to agencies has been critical. A long excerpt:

“Over time, the administrative delegations Congress has made have helped to build a modern Nation. Congress wanted fewer workers killed in industrial accidents. It wanted to prevent plane crashes, and reduce the deadliness of car wrecks. It wanted to ensure that consumer products didn’t catch fire. It wanted to stop the routine adulteration of food and improve the safety and efficacy of medications. And it wanted cleaner air and water. If an American could go back in time, she might be astonished by how much progress has occurred in all those areas. It didn’t happen through legislation alone. It happened because Congress gave broad-ranging powers to administrative agencies, and those agencies then filled in—rule by rule by rule—Congress’s policy outlines.”¹

That’s out the window now. When it comes to carbon emissions, the senators from big coal and ExxonMobil will make the decisions. Kagan concluded, “Whatever else this Supreme Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high.”