Opinion Congress tries to protect the planet from an overreaching court


HR King
May 29, 2001
By E.J. Dionne Jr.
Columnist |
August 28, 2022 at 7:00 a.m. EDT

The Supreme Court’s conservative majority put itself front and center in American politics with its decision to overturn Roe v. Wade. But the understandable passion around abortion rights should not obscure another profoundly consequential political struggle — over the federal government’s capacity to regulate the economy and protect the environment.
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Supporters of regulation in the public interest were rightly alarmed by the court’s ideologically polarized 6-3 ruling earlier this summer limiting the Environmental Protection Agency’s ability to regulate carbon emissions from power plants. The good news is that the pushback against the court from Democrats in Congress has already begun.
“We are on alert,” Rep. Kathy Castor (D-Fla.), who chairs the House Select Committee on the Climate Crisis, told me. Anti-regulation conservatives, she added, “haven’t been successful in legislation, but they have succeeded in packing the court.”
The upshot: Congress will have to find new ways to “be specific in reaffirming the authority to regulate.”

This is exactly what Congress did in provisions of the Inflation Reduction Act that initially received little attention. The bill’s headline climate change provisions involved a variety of subsidies and credits for clean energy. But as Lisa Friedman reported in the New York Times, the bill also responded directly to the climate ruling.
The court majority claimed that Congress had never given the agency explicit authority for such actions. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Chief Justice John G. Roberts Jr. wrote.
Justice Elena Kagan was scathing in her dissent. “The Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions,” she wrote. “The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.”
Kagan added: “Whatever else this Court may know about, it does not have a clue about how to address climate change.”
Democrats in Congress plainly agree. While rejecting the court’s view that the legislative branch had not been specific enough in granting the EPA authority around certain climate issues, they used the Inflation Reduction Act to make their intentions absolutely clear.
The new law, as Friedman reported, amended the Clean Air Act “to define the carbon dioxide produced by the burning of fossil fuels as an ‘air pollutant,’” and explicitly gave the EPA authority “to regulate greenhouse gases.”
“The Clean Air Act was written to be very flexible,” Rep. Frank Pallone Jr. (D-N.J.), chair of the House Energy and Commerce Committee, said in an interview. “The EPA has the authority and the obligation to protect public health, and as new sources of pollution arose, the EPA could act.”
As Pallone suggests, years of court precedent accepted Congress’s need to delegate considerable authority to regulators who have expertise and need to respond to changing circumstances.
But right-wing judges and scholars are pursuing a variety of strategies to limit federal regulatory authority. One path, reflected in the climate case, would limit Congress’s ability to delegate by insisting that regulatory laws need to be far more specific. Some propose repudiating what is known as “the Chevron doctrine,” named after a 1984 Supreme Court decision, which calls for judicial deference to the regulators’ interpretations of ambiguous statutes if they are deemed reasonable. And more radical critics of the administrative state, including Justice Clarence Thomas, have challenged delegation altogether as unconstitutional.
“This whole idea is nonsense,” Pallone said. “It’s a right-wing court saying that these bills that were supposed to be flexible can’t be flexible anymore because they don’t want to regulate pollution — or regulate anything.”
In the case of the climate ruling, it was easier for Congress to respond because the decision was made on relatively narrow grounds. The new language should make it harder for courts in future rulings to claim that there is any ambiguity about the Clean Air Act’s purposes.
“Working with our colleagues in the House, we reaffirmed the current state of the law, which is that carbon dioxide, methane and other greenhouse gases are pollutants under the Clean Air Act,” Sen. Thomas R. Carper (D-Del.), chair of the Senate Environment and Public Works Committee, told me in an email. “It’s an insurance policy against a court that’s become out of step with the American people.”
“It doesn’t take a lawyer to acknowledge that the current majority on the Supreme Court is clearly willing to overturn long-standing precedent,” Carper added. “To that end, I think it’s important for major legislation coming out of Congress to reflect current judicial interpretation.”
If the court stays on its current course, it risks an outright clash with Congress and would add fuel to a movement among some Democrats to offset the current conservative majority by increasing the number of justices.
In the meantime, the people’s elected representatives will have to do the best they can to court-proof the regulations that will keep our planet from burning.