Looming High Court Shift May Spur Calls For Hill Action On Environment

September 24, 2020

The expected Supreme Court shift to a 6-3 conservative majority may spur calls for Congress to advance legislation on environmental issues including climate change, because the court may be more skeptical of EPA and other agencies’ regulatory authority, making it harder to implement new rules, legal experts say.

How Congress responds to such calls in the short term will likely depend on whether Democratic nominee Joe Biden wins the presidency and Democrats take the Senate in the November elections, observers say.

But efforts to lay the groundwork for a legislative push on climate change and other environmental issues were already active before the sudden high court vacancy created by the death of Associate Justice Ruth Bader Ginsburg, with House and Senate Democrats pushing bills to reduce greenhouse gas emissions.

While prospects for new environmental laws remain murky, House Speaker Nancy Pelosi (D-CA) is already calling action on climate and infrastructure in 2021 “absolutely a priority” in the wake of wildfires and the COVID-19 pandemic and its negative economic impacts, according to The Hill. “I don’t know if it’s one bill or it permeates a number of bills,” Pelosi said

Several sources say that the upcoming high court shift underscores the importance of such legislative efforts, whether on climate change or other topics, assuming the Senate moves quickly to approve the nominee that President Donald Trump is poised to announce Sept. 26.

Given that the high court’s conservative majority will likely be wary of discretion to agencies in rulemakings, Congress’ could increasingly establish new EPA or other authorities through prescriptive legislation, the sources say.

“It was going be hard anyway” for using existing laws to address climate change, Vermont Law School Professor of Law Patrick Parenteau says, alluding to expectations that a potential Biden administration will seek to reverse Trump administration GHG deregulation and pursue new affirmative climate and other environment policies.

Assuming former Vice President Joe Biden defeats Trump in November, “if he doesn’t get the Senate, he isn’t going to be getting anything [major] through Congress,” Parenteau adds.

But the court shift “certainly boosts the importance” of climate and other environmental legislation in the coming months and years, whether it is command and control, incentives, or new spending. “If Biden is elected, he is going to have to pick his battles” whether before Congress or in front of the changing Supreme Court,” he says.

Case Western Reserve University Professor Jonathan Adler agrees that the impending court shift makes Congress more important on environmental policy. “A trend on the court [that] I think the next nominee is likely to reinforce is a skepticism of agencies going it on their own and asserting authority that Congress didn’t very clearly give them.”

Adler says this means for a Biden administration, “you don’t want to be in the position of the Obama administration on the Clean Power Plan (CPP),” referring to what the Trump EPA claims was Obama administration overreach in seeking to implement beyond the fence line GHG controls on the power sector with its Clean Power Plan (CPP) rule. “You want to be in a position [as an agency] where Congress just passed this law and all we are doing is implementing it,” Adler says.

The Trump administration ultimately scrapped the CPP and replaced it with the narrower Affordable Clean Energy rule, but that rule is already being challenged and also subject to potential rewrite by a Biden White House.

Limits On Agency Discretion

Congress has repeatedly balked at moving major legislation to address climate pollutants, and even a more-modest plan encompassing numerous energy related provisions and an industry backed phasedown of hydrofluorocarbons has drawn a presidential veto threat in recent days.

But Adler and others also say the court shift points not just to renewed attention to Congress as a potential vehicle for environmental policy, but increasing pressure for Congress to err on the side of being more prescriptive in legislation once it does decide to move forward, rather than giving agency’s broad discretion.

“It is also smart to not put too much weight on what the agency is going to have to do because you are creating legal vulnerability the more you leave stuff up to the agency,” Adler says.

Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law, likewise says a court shift underscores a potentially major role for Congress in moving to “clarify” a range of environmental authorities, given fights even before the court shift over the precise meaning of current environmental laws.

“Many of the environmental cases that reach the Supreme Court turn on interpretation of ambiguous statutes.” Gerrard says. “For example, are greenhouse gases ‘air pollutants’ under the Clean Air Act; what does it mean to be a ‘good neighbor’ for air pollution purposes; what sorts of parties are liable under [Superfund law]; and what sources of water pollution are covered by the Clean Water Act.”

That means “Congress could clarify relevant ambiguities and end certain debates over statutory interpretation,” Gerrard adds.

But he warns that a “hostile court could still declare that Congress is delegating too much power to the agencies . . . which would require Congress to be much more specific in its requirements.”

Foley Hoag Partner Seth Jaffe references a longtime pattern dating to the New Deal under which Congress has given broad grant of authority to agencies and left them to implement the important details of a policy.

But a court shift could boost the importance of conservatives to revive the “non-delegation doctrine” under which courts would take a dim view of such grants of authority as unconstitutional delegations of legislative power to agencies, Jaffe says. That could still mean a lot of work for EPA to justify rules, but might point to the need for “longer, more detailed statutes” less likely to run afoul of such nondelegation scrutiny, he adds.

Jaffe also cites a few examples of “obvious places” where new legislation might play a role, where specific regulations are already in dispute or pending, including current fights over the definition of federal waters of the United States, as well as battles over power plant GHG regulation. -- Doug Obey (dobey@iwpnews.com)

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