By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies
On June 30, the Supreme Court issued its decision in West Virginia v. Environmental Protection Agency. This case involved the ability of the EPA to regulate greenhouse emissions from existing power plants. This decision, another case that has been split along ideological lines, was quoted in news outlets all over the world as another example of the Supreme Court’s takeover by conservatives and a purely ideological decision.
There is some truth that Supreme Court decisions in this term have ideological foundations. Constitutional law touches on some of the foundational blocks of political philosophy, and important cases call on the Justices to make decisions based on some of their firmly held beliefs regarding the correct structure of legal and political systems.
But in most Supreme Court cases, there are questions of law that are not ideological by nature. In this case, the issue was administrative law.
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Administrative Law Governs Political Policy
One of the courses I teach in the University is PADM 611, known as “Law and Public Policy.” This course is commonly taken by graduate students, and the course introduces them to some basic legal terms relevant to public policy.
One of the units in the course has to do with administrative law. The Legal Information Institute defines administrative law as “the branch of law governing the creation and operation of administrative agencies. The powers granted to administrative agencies are particularly important, along with the substantive rules that such agencies make, and the legal relationships between agencies, other government bodies, and the public at large.”
In other words, administrative law concerns the scope of authority of the executive branch of our government, which is the President and various federal agencies. The EPA’s case asked this fundamental administrative law question: Did the EPA have the authority to regulate existing power plants for certain kinds of emissions?
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The Background of West Virginia v. Environmental Protection Agency
In 2015, the Environmental Protection Agency drafted the Clean Power Plan (CPP). This plan regulated carbon dioxide emissions from existing power plants that utilized coal or natural gas.
The source that the EPA cited for the CPP was Section 111 of the Clean Air Act. The EPA demanded that power plants shift their production to green sources, such as solar power, wind power or natural gas. Several states and organizations, however, challenged the EPA’s authority to demand these changes.
Majority and Minority Opinions on the Case
The majority opinion, written by Chief Justice John Roberts, explained that the language in the Clean Air Act’s statute was too vague to support such a broad authority, so the EPA did not have the authority to regulate power plants. Roberts also noted that the statute required clearer language.
Associate Justice Elena Kagan, writing for the minority, took a different view. She argued that Section 111 of the Clean Air Act did give the EPA the authority to regulate power plants, noting, “We do not assess the meaning of a single word, phrase, or provision in isolation; we also consider the overall statutory design. And that is just as true of statutes broadly delegating power to agencies as of any other kind.
“In deciding on the scope of such a delegation, courts must assess how an agency action claimed to fall within the provision fits with other aspects of a statutory plan. So too, a court ‘must be guided to a degree by common sense as to the manner in which Congress is likely to delegate.’ ….Assume that a policy decision, like this one, is a matter of significant ‘economic and political magnitude.’ We know that Congress delegates such decisions to agencies all the time — and often via broadly framed provisions like Section 111.”
Another Case Concerning the Ability of a Federal Agency to Make Regulations
The regulatory powers question that the Supreme Court is dealing with is at the core of administrative law. A similar case that my students study is a case from 1983 that also involves the powers of the EPA: Chevron U.S.A. Inc. v. Natural Resources Defense Council.
In this case, the Supreme Court “established a two-step test for judicial review of an agency’s interpretation of a statute. The first step is to ask whether Congress has answered the particular question in dispute in the statute itself. If so, that answer (absent some constitutional flaw) is dispositive. But if the statute is ambiguous on the issue, the next step for a reviewing court is to ask whether the agency’s interpretation is reasonable.”
Congress Will Need to Work Harder in the Future
From its decision in West Virginia v. Environmental Protection Agency, it appears that the Supreme Court wants the executive branch of our government to stop grabbing authority without a clear legal basis. Federal agency powers are limited by Congress, and federal agencies cannot have powers that are not enumerated in the law; that is the core principle of administrative law.
So what is the overall message here? With this Supreme Court, Congress will need to work harder. If political leaders on both sides want to accomplish their goals, they will need to create bipartisan initiatives.
While there is a conservative majority in the Supreme Court, it seems clear that they are not against legislating from the bench. That means that aggressive legislators can push things through Congress and will be able to shape the future because this Supreme Court is minimalistic at its core.
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