A wave of Supreme Court decisions over the past two years has significantly eroded the Environmental Protection Agency’s authority to limit air and water pollution, regulate the use of toxic chemicals and release greenhouse gases that warm the planet.
This term, the Court’s conservative supermajority has issued several rulings that undermine the power of many federal agencies.
But the environmental agency is under fire, following a series of cases filed since 2022 by conservative activists who say EPA regulations have driven up costs for industries ranging from electric utilities to residential construction. These arguments have resonated among judges skeptical of government regulation.
On Friday, the court ended the use of what is known as the Chevron doctrine, a cornerstone of administrative law for four decades that says courts should leave the interpretation of unclear laws to government agencies. That decision threatens the authority of many federal agencies to regulate the environment, as well as health care, workplace safety, telecommunications, the financial industry and more.
But more notable are the court’s several decisions to intervene to halt environmental regulations before they were enacted by lower courts or even before they were implemented by the executive branch.
On Thursday, the court said the EPA cannot limit smokestack pollution that blows across state lines under a measure known as the “good neighbor rule.” In that case, the court took the surprising step of weighing in while a lawsuit was still pending in the U.S. Court of Appeals for the District of Columbia Circuit.
The court also acted in an unusually preliminary manner last year when it struck down a proposed EPA rule, known as Waters of the United States, that was intended to protect millions of acres of wetlands from pollution, acting before the regulation was even made final .
Similarly, in a 2022 challenge to an EPA climate proposal known as the Clean Power Plan, the court sharply limited the agency’s ability to regulate greenhouse gas emissions from power plants, even though that rule was not yet in effect become.
These types of interventions have little precedent. Typically, the Supreme Court is the last place where a case is heard, after lower courts have argued arguments and issued opinions.
“This court has shown interest in making law in this area and does not have the patience to wait for cases to first come before the court,” said Kevin Minoli, an attorney who worked in the office of general counsel. Clinton Community EPA. through the Trump administrations. “They have been aggressive in governing. It’s like we’re going to tell you the answer before you even ask the question.
Collectively, these decisions now not only endanger many existing environmental rules, but could prevent future governments from writing new ones, experts say.
“These are among the worst environmental law decisions the Supreme Court will ever issue,” said Ian Fein, a senior attorney at the Natural Resources Defense Council, an advocacy group. “They have all made sharp cuts to the federal government’s ability to enforce laws that protect us from polluters.”
The surge in 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, the 1970 law that requires federal agencies to analyze whether their proposed projects will impact have for the environment. Businesses and industries have long complained that the reviews can take years, drive up costs and can be used by community groups to block projects.
For a coalition of industries, conservative advocacy groups and Republican attorneys general and their campaign donors, the recent decisions are a victory in a multi-year strategy to use the legal system to influence environmental policy.
Many of the petitioners in the 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 lead plaintiff in last year’s wetlands protection case, the Pacific Legal Foundation, is part of the network of conservative research organizations that has received funding from billionaire Charles Koch, chairman of the petrochemical company Koch Industries and an anti-regulation advocate. causes.
“You’re seeing a lot more coordination now than you used to, coalitions of states and trade groups to change administrative law,” said Damien M. Schiff, an attorney at the Pacific Legal Foundation. “Trade groups, the House, PLF, we very consciously take on cases that we hope will win, in a precedent-setting way. The strategy and tactics are the same. It is coordinated internally.”
The Supreme Court “has shown a greater willingness to exercise its authority earlier in the litigation process,” Mr. Schiff said.
Prosecutors are also planning for the future.
President Biden has pledged that the United States will halve carbon pollution by 2030 and eliminate it by 2050, which scientists say all major economies must do if the world is to avoid the deadliest and costly impacts of climate change. This year, the EPA has rushed to finalize new rules to reduce pollution from cars, trucks, power plants and methane leaks from oil and gas wells.
If he wins a second term, Mr. Biden wants to cut emissions from steel, cement and other heavy industries that have never needed to reduce their global-warming emissions.
But the string of recent losses before the Supreme Court could make it difficult for the EPA to implement these plans.
“There has been a steady erosion of environmental law,” said Patrick Parenteau, an environmental law expert at Vermont Law School. “These decisions mean that if Biden gets a second term, he won’t be able to do much else on the environment, especially on climate.”
Christine Todd Whitman, a former Republican and former governor of New Jersey who managed the EPA during the George W. Bush administration, said environmental regulations could sometimes go too far and needed to be tempered by courts. But she said she saw the recent Supreme Court rulings as an alarming new precedent.
“What this activist conservative court is doing now, what really upsets me, is trying to implement a political agenda,” Ms. Whitman said. “They are looking for an opportunity to make a statement. And it circumvents and undermines the agencies. It’s as if they’re taking the attitude that all regulations are bad and that we’re going to stop them all before they go too far.”
That will have damaging consequences, she said.
“If you don’t have clean air to breathe and water to drink, it’s going to cost a lot,” Ms. Whitman said. “This puts many people’s lives at risk.”
For example, the court’s decision to limit the EPA’s authority to regulate wetlands and so-called ephemeral streams means that about half of the nation’s wetlands could be polluted or paved over without federal penalty, potentially affecting thousands of species could harm plants and animals. In addition, new research has shown that the court’s ruling also makes major U.S. watersheds vulnerable to pollution.
Carrie Severino, president of the Judicial Crisis Network, said in a statement that the legal decisions appropriately shift authority over decisions with major economic impact from the executive branch to the legislature.
“For too long, unaccountable bureaucrats in DC have imposed destructive regulations that harm farmers, fishermen and countless small business owners already struggling to survive in our global economy, and the Supreme Court has an opportunity to take responsibility for that process by returning power to Congress where it belongs,” she said.
On that last point, environmentalists and conservatives say they agree: If the federal government wants to protect the environment, Congress must update existing laws and pass new legislation.
The nation’s foundational environmental laws, the Clean Air Act and the Clean Water Act, were both written more than fifty years ago, before the effects of climate change and a global economy that has reshaped the ecological and economic landscape.
Since then, Congress has passed one major bill to address climate change: the Inflation Reduction Act 2022. It includes more than $370 billion in incentives for clean energy technologies, including wind and solar energy and electric vehicles. Climate experts call it a strong first step in reducing the country’s emissions, but say much more is needed to completely eliminate them over the next 25 years.
“Agencies have had to use old, existing laws for more than three decades to address new environmental problems,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “And this new court now makes that extremely difficult. Unless Congress is extremely specific, agencies cannot act. But with Congress largely immobilized, this in turn freezes what they can do.”
